iiiil  . 


Ala 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


THE    CONTINENTAL 
LEGAL    HISTORY    SERIES 

Volume  Six 


A  HISTORY  OF  CONTINENTAL 
CRIMINAL  LAW 


The  Continental  Legal  History  Series 

PuhUslied  under  the  auspices  of  the 

Association  of  American  Law  Schools 


I.  A    GENERAL   SURVEY   OF   EVENTS,   SOURCES,   PERSONS, 

AND  MOVEMENTS  IN  CONTINENTAL  LEGAL  HISTORY. 
By  Various  Authors.  Translated  by  Rapelje  Howell,  F.  S. 
Philbrick,  John  Walgren,  and  John  H.  Wigmore.     S6.00  net. 

XL  GREAT  JURISTS  OF  THE  WORLD,  FROM  PAPINIAN  TO 
VON  IHERING.  By  Various  AuVhors.  Illustrated.  (E.xtra  vol- 
ume.   By  arrangement  with  John  Murray,  London.)     $5.00  net. 

in.  HISTORY  OF  FRENCH  PRIVATE  LAW.  By  J.  Brissaud,  late 
of  the  University  of  Toulouse.  Translated  by  Rapelje  Howell,  of 
the  New  York  Bar.     $5.00  net. 

IV.  HISTORY  OF  GERMANIC  PRIVATE  LAW.  By  Rudolph 
Huebner,  of  the  University  of  Rostock.  Translated  by  Dr.  Francis 
S.  Philbrick,  of  New  York,  N.  Y.     $4.50  net. 

V.  HISTORY  OF  CONTINENTAL  CRIMINAL  PROCEDURE.    By 

A.  EsMEiN,  Profe.ssor  in  the  University  of  Paris,  with  chapters  by 
Francois  Garraud,  of  the  University  of  Lyon,  and  C.  J.  A.  Mitter- 
MAiER,  late  of  the  University  of  Heidelberg.  Translated  by  John 
Simpson,  of  the  New  York  Bar.     $4.50  net. 

VI.  HISTORY  OF  CONTINENTAL  CRIMINAL  LAW.  By  Luowia 
VON  Bar,  of  the  University  of  Göttingen.  Translated  by  Thomas  S. 
Bell,  of  the  Tacoma  Bar.    $4.00  net. 

VII.  HISTORY    OF    CONTINENTAL    CIVIL    PROCEDURE.      By 

Arthur  Engelmann,  Chief  Justice  of  the  Court  of  Appeals  at  Breslau, 
with  a  chapter  by  E.  Glasson,  late  of  the  University  of  Paris.  Trans- 
lated by  Robert  W.  Millar,  of  Northwestern  University.     $4.00  net. 

VIII.  HISTORY  OF  ITALIAN  LAW.  By  Carlo  Calisse,  of  the  Italian 
Council  of  State.  Translated  by  John  Lislp:,  late  of  the  Philadel- 
phia Bar.     $5.00  net. 

IX.  HISTORY  OF  FRENCH  PUBLIC  LAW.  By  J.  Brissaud,  late  of 
the  University  of  Toulouse.  Translated  by  James  W.  Garner,  of 
the  University  of  Illinois.     .?4.50  net. 

X.  HISTORY  OF  CONTINENTAL  COMMERCIAL  LAW.  By  Paul 
Huvelin,  of  the  University  of  Lyon.  Translated  by  Ernest  G. 
Lorexzex,  of  the  University  of  Wisconsin.     85.50  net. 

XL  THE  PROGRESS  OF  CONTINENTAL  LAW  IN  THE  19TH 
CENTURY.  By  A.  Alvarez,  L.  Duguit,  J.  Charmont,  E.  Ripert, 
and  others    $5.00  net. 


THE   CONTINENTAL  LEGAL  HISTORY  SERIES 

Published  under  the  auspices  of  the 
ASSOCIATION  OF  AMERIC.\N  LAW  SCHOOLS 

A  HISTORY  OF  CONTINENTAL 
CRIMINAL  LAW 

BY 

CARL    LUDWIG  von   BAR 

LATE   PROFESSOR   OF   LAW   IX    THE    UNIVERSITY   OF    GÖTTINGEN 

AND   OTHERS 
TRANSLATED   BY 

THOMAS    S.    BELL 

OF    THK    LOS    ANGELES    BAR 

AND   OTHERS 

WITH    AN    EDITORIAL    TREFACE    BY 

JOHN    II.   WIGMORE 

PROFESSOR    OF    LAW    IN    NORTHWESTERN    UNIVERSITY 
AND    INTRODUCTIONS   BY 

WILLIAM   RENWICK   RIDDELL 

JUDGE  OF  THE  HIGH  COURT  OF  JUSTICE  FOR  ONTARIO 
AND  UY 

EDWIN   R.  KEEDY 

PROFESSOR    OF    LAW    IN    THE    UNIVERSITY    OF   PENNSYLVANIA 


BOSTON 
LITTLE,  BROWN,  AND  COMPANY 

19IG 


B37, 


Copyright,  1916, 
By  Little,  Brown,  and  Compant. 


All  rights  reserved 


EDITORIAL  COMMITTEE 

OF   THE 

ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 

Joseph    H.   Drake,   Professor    of    Law    in   the   University   of 

Michigan. 
Ernst  Freund,  Professor  of  Law  in  the  University  of  Chicago. 
Ernest  G.  Lorenzen,  Professor  of  Law  in  the  University  of 

Minnesota. 
Wm.  E.  Mikell,  Professor  of  Law  in  the  University  of  Penn- 

sj'lvania. 
John  H.  Wigmore,  Chairman,  Professor  of  Law  in  Northwestern 

University. 


LIST   OF  TRANSLATORS 

Thomas  S.  Bell,  of  the  Los  Angeles  Bar. 

James  W.  Garner,  Professor  in  the  University  of  IlHnois. 

Rapelje  Howell,  of  the  New  York  Bar. 

John  Lisle,  of  the  Philadelphia  Bar. 

Ernest  G.  Lorenzen,  of  the  Editorial  Committee. 

Robert  W.  Millar,  of  the  Chicago  Bar,  Professor  of  Law  in 

Northwestern  University. 
Francis  S.  Philbrick,  of  the  New  York  Bar. 
Layton  B.   Register,  Lecturer  on  Law  in  the  University  of 

Pennsylvania. 
John  Simpson,  of  New  York. 
John  Walgren,  of  the  Chicago  Bar. 
John  H.  Wigmore,  of  the  Editorial  Committee. 


I  might  instance  in  other  professions  the  obligation  men  lie  under  of 
applying  themselves  to  certain  parts  of  History;  and  I  can  hardly  for- 
bear doing  it  in  that  of  the  Law,  —  in  its  nature  the  noblest  and  most 
beneficial  to  mankind,  in  its  abuse  and  debasement  the  most  sordid  and 
the  most  pernicious.  A  lawyer  now  is  nothing  more  (I  speak  of  ninety- 
nine  in  a  hundred  at  least),  to  use  some  of  Tully's  words,  "nisi  leguleius 
quidcm  cautus,  et  acutus  praeco  actionum,  cantor  fornmlarum,  auceps 
syllal^arum."  But  there  have  been  lawyers  that  were  orators,  philoso- 
phers, historians:  there  have  been  Bacons  and  Clarendons.  There  will 
be  none  such  any  more,  till  in  some  betten*  age  true  ambition,  or  the  love 
of  fame,  prevails  over  avarice;  and  till  men  find  leisure  and  encourage- 
ment to  prepare  themselves  for  the  exercise  of  this  profession,  by  climl> 
ing  up  to  the  vantage  ground  (so  my  Lord  Bacon  calls  it)  of  Science, 
instead  of  grovelling  all  their  lives  below,  in  a  mean  but  gainful  apjjlica- 
tion  of  all  the  little  arts  of  chicane.  Till  this  happen,  the  profession  of  the 
law  will  scarce  deserve  to  be  ranked  among  the  learned  professions.  And 
whenever  it  happens,  one  of  the  vantage  grounds  to  which  men  must 
climb,  is  Metaphysical,  and  the  other,  Historical  Knowledge.  Hexry 
St.  Joiix,  Viscount  Bolingbroke,  Letters  on  the  Study  of  History  (1739). 

Whoever  brings  a  fruitful  idea  to  any  branch  of  knowledge,  or  rends 
the  veil  that  seems  to  sever  one  portion  from  another,  his  name  is  written 
in  the  Book  among  the  builders  of  the  Temple.  For  an  English  lawyer 
it  is  hardly  too  much  to  say  that  the  methods  which  Oxford  in\-ited  Sir 
Henry  Maine  to  demonstrate,  in  this  chair  of  Historical  and  Comparative 
Jurisprudence,  have  revolutionised  our  legal  history  and  largely  trans- 
formed our  current  tex-t-books. — Sir  Frederick  Pollock,  Bart.,  The 
History  of  Comparative  Jurisprudence  (Farewell  Lecture  at  the  Univer- 
sity of  Oxford,  1903). 

No  piece  of  History  is  true  when  set  apart  to  itself,  divorced  and  iso- 
lated. It  is  part  of  an  intricately  pieced  whole,  antl  must  needs  be  put 
in  its  place  in  the  netted  scheme  of  events,  to  receive  its  true  color  and 
estimation.  We  are  all  partners  in  a  common  undertaking,  —  the  illumi- 
nation of  the  thoughts  and  actions  of  men  as  associated  in  society,  the 
life  of  the  human  spirit  in  this  familiar  theatre  of  cooperative  effort  in 
which  we  play,  so  changed  from  age  to  age,  and  yet  so  much  the  same 
throughout  the  hurrying  centuries.  The  day  for  synthesis  has  come.  No 
one  of  us  can  safely  go  forward  without  it.  —  Woodrow  Wilson,  The 
Variety  and  Unity  of  History  (Address  at  the  World's  Congress  of  Arts 
and  Science,  St.  Louis,  1904). 

A  lawyer  without  history  or  literature  is  a  mechanic,  a  mere  working 
mason ;  if  he  possesses  some  knowledge  of  these,  he  may  venture  to  call  him- 
self an  architect. — Sir  Walter  Scott,  "Guy  Mannering,"  c.  XXXVII. 


CONTINENTAL  LEGAL  HISTORY  SERIES 
GENERAL    INTRODUCTION   TO   THE    SERIES 

"All  history,"  said  the  lamented  master  Maitland,  in  a  memo- 
rable epigram,  "  is  but  a  seamless  web ;  and  he  who  endeav'ors  to 
tell  but  a  piece  of  it  must  feel  that  his  first  sentence  tears  the 
fabric." 

This  seamless  web  of  our  own  legal  history  unites  us  inseparably 
to  the  history  of  Western  and  Southern  Europe.  Our  main  interest 
must  naturally  center  on  deciphering  the  pattern  which  lies 
directly  before  us,  —  that  of  the  Anglo-American  law.  But  in 
tracing  the  warp  and  woof  of  its  structure  we  are  brought  inevi- 
tably into  a  larger  field  of  vision.  The  story  of  Western  Continental 
Law  is  made  up,  in  the  last  analysis,  of  two  great  movements, 
racial  and  intellectual.  One  is  the  Germanic  migrations,  planting 
a  solid  growth  of  Germanic  custom  everx^where,  from  Danzig 
to  Sicily,  from  London  to  Vienna.  The  other  is  the  posthumous 
power  of  Roman  law,  forever  resisting,  struggling,  and  coalescing 
with  the  other.  A  thousand  detailed  combinations,  of  varied 
types,  are  developed,  and  a  dozen  distinct  systems  now  survive 
in  independence.  But  the  result  is  that  no  one  of  them  can  be 
fully  understood  without  surveying  and  tracing  the  whole. 

Even  insular  England  cannot  escape  from  the  web.  For,  in 
the  first  place,  all  its  racial  threads  —  Saxons,  Danes,  Normans  — 
were  but  extensions  of  the  same  Germanic  warp  and  woof  that 
was  making  the  law  in  France,  Germany,  Scandinavia,  Nether- 
lands, Austria,  Switzerland,  Northern  Italy,  and  Spain.  And, 
in  the  next  place,  its  legal  culture  was  never  without  some  of  the 
same  intellectual  influence  of  Roman  law  which  was  so  thoroughly 
overspreading  the  Continental  peoples.  There  is  thus,  on  the 
one  hand,  scarcely  a  doctrine  or  rule  in  our  own  system  which  can- 
not be  definitely  and  profitably  traced  back,  in  comparison,  till 
we  come  to  the  point  of  divergence,  where  we  once  shared  it  in 
common  with  them.  And,  on  the  other  hand,  there  is,  during  all 
the  intervening  centuries,  a  more  or  less  constant  juristic  socia- 
bility (if  it  may  be  so  called)  between  Anglo-American  and  Con- 

ix 


CONTINENTAL   LEGAL   HISTORY    SERIES 

tincntal  Law;  and  its  reciprocal  influences  make  the  story  one 
and  inseparable.  In  short,  there  is  a  tangled  common  ancestry, 
racial  or  intellectual,  for  the  law  of  all  Western  Euro[)e  and  ourselves. 

For  the  sake  of  legal  science,  this  story  should  now  become  a 
familiar  one  to  all  who  are  studious  to  know  the  history  of  our 
own  law.  The  time  is  ripe.  During  the  last  thirty  years  Euro- 
j)ean  scholars  have  placed  the  history  of  their  law  on  the  footing 
of  modern  critical  and  philosophical  research.  And  to-day,  among 
ourselves,  we  find  a  marked  widening  of  view  and  a  vigorous 
interest  in  the  comparison  of  other  peoples'  legal  institutions. 
To  the  satisfying  of  that  interest  in  the  present  field,  the  only 
obstacle  is  the  lack  of  adequate  materials  in  the  English  language. 

That  the  spirit  of  the  times  encourages  and  demands  the  study 
of  Continental  Legal  History  and  all  useful  aids  to  it  was  pointed 
out  in  a  memorial  presented  at  the  annual  meeting  of  the  Asso- 
ciation of  American  Law  Schools  in  August,  1909: 

"The  recent  spread  of  interest  in  Comparative  Law  in  general  is 
notable.  The  Comparative  Law  Bureau  of  the  American  Bar  Associa- 
tion; the  Pan-American  Scientific  Congress;  the  x\merican  Institute 
of  Criminal  Law  and  Criminology;  the  Civic  Federation  Conference 
on  LTniform  Legislation;  the  International  Congress  of  History;  the 
lib.raries'  accessions  in  foreign  law,  - —  the  work  of  these  and  other 
movements  touches  at  various  points  the  bodies  of  Continental  law. 
Such  activities  serve  to  remind  us  constantly  that  we  have  in  English 
no  histories  of  Continental  law.  To  pay  any  attention  at  all  to  Con- 
tinental law  means  that  its  history  must  be  more  or  less  considered. 
Each  of  these  countries  has  its  own  legal  system  and  its  own  legal 
history.  Yet  the  law  of  the  Continent  was  never  so  foreign  to  Eng- 
lish as  the  English  law  was  foreign  to  Continental  jurisprudence. 
It  is  merely  maintaining  the  best  traditions  of  our  own  legal  litera- 
ture if  we  plead  for  a  continued  study  of  Continental  legal  history. 

"  We  believe  that  a  better  acquaintance  with  the  results  of  modern 
scholarship  in  that  field  will  bring  out  new  points  of  contact  and 
throw  new  light  upon  the  development  of  our  own  law.  Moreover, 
the  present-day  movements  for  codification,  and  for  the  reconstruc- 
tion of  many  departments  of  the  law,  make  it  highly  desirable  that 
our  profession  should  be  well  informed  as  to  the  history  of  the  nine- 
teenth century  on  the  Continent  in  its  great  measures  of  law  reform 
and  codification. 

"  For  these  reasons  we  believe  that  the  thoughtful  American  lawyers 
and  students  should  have  at  their  disposal  translations  of  some  of 
the  best  works  in  Continental  legal  history." 

And  the  following  resolution  was  then  adopted  unanimously  by 
the  Association: 


CONTINENTAL   LEGAL   HISTORY    SERIES 

"That  a  committee  of  five  be  appointed,  on  Translations  of  Conti- 
nental Legal  History,  with  authority  to  arrange  for  the  translation 
and  publication  of  suitable  works." 

The  Editorial  Committee,  then  appointed,  spent  two  years  in 
studying  the  field,  making  selections,  and  arranging  for  trans- 
lations. It  resolved  to  treat  the  undertaking  as  a  whole;  and  to 
co-ordinate  the  series  as  to  (1)  periods,  (2)  countries,  and  (3) 
topics,  so  as  to  give  the  most  adequate  survey  within  the  space- 
limits  available. 

(1)  As  to  periods,  the  Committee  resolved  to  include  modern 
times,  as  well  as  early  and  mediaeval  periods;  for  in  usefulness 
and  importance  they  were  not  less  imperative  in  their  claim  upon 
our  attention.  Each  volume,  then,  was  not  to  be  merely  a  valu- 
able torso,  lacking  important  epochs  of  development;  but  was 
to  exhibit  the  history  from  early  to  modern  times. 

(2)  As  to  countries,  the  Committee  fixed  upon  France,  Ger- 
many, and  Italy  as  the  central  fields,  leaving  the  history  in  other 
countries  to  be  touched  so  far  as  might  be  incidentally  possible. 
Spain  would  have  been  included  as  a  fourth;  but  no  suitable  book 
was  in  existence;  the  unanimous  opinion  of  competent  scholars 
is  that  a  suitable  history  of  Spanish  law  has  not  yet  been  \\Titten. 

(3)  As  to  topics,  the  Committee  accepted  the  usual  Continental 
divisions  of  Civil  (or  Private),  Commercial,  Criminal,  Procedural, 
and  Public  Law,  and  endeavored  to  include  all  five.  But  to  repre- 
sent these  five  fields  under  each  principal  country  would  not  only 
exceed  the  ine\T[table  space-limits,  but  would  also  dupUcate  much 
common  ground.  Hence,  the  grouping  of  the  individual  volumes 
was  arranged  partly  by  topics  and  partly  by  countries,  as  follows: 

Commercial  Law,  Criminal  Law,  Civil  Procedure,  and  Criminal 
Procedure,  were  allotted  each  a  volume;  in  this  volume  the  basis 
w^as  to  be  the  general  European  history  of  early  and  mediaeval 
times,  with  special  reference  to  one  chief  country  (France  or 
Germany)  for  the  later  periods,  and  witli  an  excursus  on  another 
chief  country.  Then  the  Civil  (or  Private)  Law  of  France  and 
of  Germany  was  given  a  volume  each.  To  Italy  was  then  given 
a  volume  covering  all  five  parts  of  the  field.  For  Public  Law  (the 
subject  least  related  in  history  to  our  own),  a  volume  was  given 
to  France,  where  the  common  starting  point  with  England,  and 
the  later  divergences,  have  unusual  importance  for  the  history 
of  our  courts  and  legal  methods.  Finally,  two  volumes  were 
allotted  to  general  surveys  indispensable  for  viewing  the  connec- 

xi 


CONTINENTAL   LEGAL   HISTORY   SERIES 

tion  of  parts.  Of  these,  an  introductory  volume  deals  with  Sources, 
Literature,  and  General  Movements,  —  in  short,  the  external 
history  of  the  law,  as  the  Continentals  call  it  (corresponding  to 
the  aspects  covered  by  Book  I  of  Sir  F,  Pollock  and  Professor 
F.  W.  Maitland's  "  History  of  the  English  Law  before  Edward  I ") ; 
and  a  final  volume  analyzes  the  specific  features,  in  the  evolution 
of  doctrine,  common  to  all  the  modern  systems. 

Needless  to  say,  a  Series  thus  co-ordinated,  and  precisely  suited 
for  our  own  needs,  was  not  easy  to  construct  out  of  materials 
written  by  Continental  scholars  for  Continental  needs.  The 
Committee  hopes  that  due  allowance  will  be  made  for  the  diffi- 
culties here  encountered.  But  it  is  convinced  that  the  ideal  of 
a  co-ordinated  Series,  which  should  collate  and  fairly  cover 
the  various  fields  as  a  connected  whole,  is  a  correct  one;  and  the 
endeavor  to  achieve  it  will  sufficiently  explain  the  choice  of  the 
particular  materials  that  have  been  used. 

It  remains  to  acknowledge  the  Committee's  indebtedness  to 
all  those  who  have  made  this  Series  possible. 

To  numerous  scholarly  advisers  in  many  Europea-n  universities 
the  Committee  is  indebted  for  valuable  suggestions  towards 
choice  of  the  works  to  be  translated.  Fortified  by  this  advice, 
the  Committee  is  confident  that  the  authors  of  these  volumes 
represent  the  highest  scholarship,  the  latest  research,  and  the 
widest  repute,  among  European  legal  historians.  And  here  the 
Committee  desires  also  to  express  its  indebtedness  to  Elbert  H. 
Gary,  Esq.,  of  New  York  City,  for  his  ample  provision  of 
materials  for  legal  science  in  the  Gary  Library  of  Continental 
Law  (in  Northwestern  LTniversity) .  In  the  researches  of  prep- 
aration for  this  Series,  those  materials  were  found  indispensable. 

To  the  authors  the  Committee  is  grateful  for  their  willing 
co-operation  in  allowing  this  use  of  their  works.  Without  ex- 
ception, their  consent  has  been  cheerfully  accorded  in  the 
interest  of  legal  science. 

To  the  publishers  the  Committee  expresses  its  appreciation 
for  the  cordial  interest  shown  in  a  class  of  literature  so  impor- 
tant to  the  higher  interests  of  the  profession. 

To  the  translators,  the  Committee  acknowledges  a  particular 
gratitude.  The  accomplishments,  legal  and  linguistic,  needed  for 
a  task  of  this  sort  are  indeed  exacting;  and  suitable  translators 
are  here  no  less  needful  and  no  more  numerous  than  suitable 
authors.    The  Committee,  on  behalf  of  our  profession,  acknowl- 

xii 


CONTIXEXTAL    LEGAL   HISTORY   SERIES 

edges  to  them  a  special  debt  for  their  cordial  services  on  behalf 
of  legal  science,  and  commends  them  to  the  readers  of  these  vol- 
umes with  the  reminder  that  without  their  labors  this  Series 
would  have  been  a  fruitless  dream. 

So  the  Committee,  satisfied  with  the  privilege  of  ha\'ing  intro- 
duced these  authors  and  their  translators  to  the  public,  retires 
from  the  scene,  bespeaking  for  the  Series  the  interest  of  lawyers 
and  historians  alike. 

The  Editorial  CoioinTEE. 


xm 


A   HISTORY  OF   CONTINENTAL 
CRIMINAL  LAW 


CONTENTS 


PAGE 

Editorial  Committee  and  List  of  Translators v 

General   Introduction   to    the    Continental    Legal    History 

Series ix 

Editorial  Preface  by  John  Henry  Wicmore xxix 

Introduction  by  AV'illiam  Renwick  Riddell xliii 

Introduction  by  Edwin  Roulette  Keedy xlix 

Author's  Preface  by  Carl  Ludwig  von  Bar liii 


PART    I 
GENERAL   HISTORY    OF   THE   CRIMINAL    LAW 

TITLE   I 
THE   KOMAN   AND   THE   GERMANIC   ELEMENTS 


CHAPTER   I 


THE   ROMAN   LAW 


§  1.  Various  Sources  of  Crimi- 
nal Law.  Vengeance. 
Influence  of  the  Priest- 
hood    

§  2.  Home.  Proininence  of 
Religious  Element. 
Roman  Law  not  a  The- 
ocratic System.  Early 
Suppression  of  Ven- 
geance      

§  3.  Snppression  of  Vengeance 
in  Cases  of    Homicide. 


Influence  of  the  Princi- 
ple of  Vengeance  in 
the  Treatment  of  Other 
Crimes 11 

§  4.    "  Perduello."  "  Mnltaj 

Irrogatio" 1(3 

§  5.  Roman  Conception  of  the 
Relation  of  the  Individ- 
ual to  the  State,  (ier- 
manic  Conception  of  the 
Relation  of  the  Individ- 
ual to  the  State.     Con- 


X\'ll 


CONTENTS 


tribution  of  Roman 
Criniinal  Law  to  the 
Establishment  of  In- 
dividual Rights ...  17 
§  6.  The  JurLsprudeiice  of  the 
Empire.  Real  Expla- 
nation of  Arbitrary 
Nature  of  Roman 
Criminal  Law  ...  21 
§  7.    The  Law  of  the  Twelve 

Tables 22 

§  8.  Power  of  "  Paterfamil- 
ias "  as  Supplement  to 
Criminal  Law.  The 
Censorship.  Infamy. 
"  Actiones  Populäres  " 
§  9.  Other  Criminal  Legisla- 
tion of  the  Republic. 
The  Statutes  of  the 
Later  Republic  .     .     . 

§  10.  Punishment  in  Statutes 
of  Later  Republic. 
Opposition  to  Death 
Penalty 28 

§  11.  Gradual  Change  in 
Character  of  the 
Criminal  Law    ...       30 

§  12.  Change  in  the  Character 
of  Exile  as  a  Punish- 
ment. Increased  Use 
of  Capital  Punishment. 
Corporal  Punishment. 


23 


26 


Imprisonment.  Hard 
Labor.  Other  Methods 
of  Punishment   ...       32 

§  13.    Infamy  and  Confiscation 

of  Property    ....       37 

§  14.    The  Range  of  Criminal 

Law.     Attempt       .     .       39 

§  15.    The     Crime    of     "  Lese 

Majeste  " 41 

§  16.  Persecution  of  the  Chris- 
tians       43 

§  17.    Sorcery  and  Soothsaying      45 

§  18.  Circumstances  Affecting 
Criminal  Law.  Class 
Privilege.  Adminis- 
tration of  Justice  by 
State  Officials.  Con- 
tinued Disregard  for 
the  Criminal.  Rever- 
sion to  more  Primitive 
Conditions     ....       45 

§  19.    Influence  of  the  Jurists  .       50 

§  20.  Influence  of  Christianity 
in  the  Later  Empire. 
Protection  of  State 
Sought  by  Numerous 
Penal  Statutes.  Other 
Effects  of  the  In- 
fluence of  the  Church. 
Last  Stages  of  the 
Roman  Criminal  Law       52 


CHAPTER   II 


PRIMITIVE   GERMANIC   CRIMINAL   LAW 


§  21.  Prominence  of  the  Ele- 
ment of  Vengeance. 
Outlawry  not  the  Most 
Primitive  Form  of 
Punishment  .... 

§  22.  Special  Relations  of 
Peace.  "  Breach  of  the 
Peace  of  the  Land  "    . 

§  23.   Composition  of  Offenses 


57 


66 
67 


§24. 


§25. 


Little  Consideration 

Given  to  the  J^lement 
of  Intention.  Expla- 
nation of  Lack  of  Con- 
sideration of  Element 
of  Intention.     Secrecy 

Influence  of  the  Early 
Kings.  Capitularies 
of  the  Carolingians     . 


68 


71 


xvm 


CONTENTS 


§  26.  Other  Forms  of  Criminal 
Punishment.  Influ- 
ence  of    the    Punish- 


ment of  Slaves.  Effect 
of  Loss  of  Freedom 
by  Mass  of  the  People      73 


TITLE   II 
THE   MIDDLE   AGES 


CHAPTER   III 


THE   CHRISTL\X   CHURCH'S   LAW 


§  27.  Excommunication  as  the 
Foundation  of  the 
Criminal  Law  of  the 
Church.  Comprehen- 
sive Nature  of  the 
Law  "  of  Penance." 
Influence  upon  the 
Criminal  Law  of  the 
State 

§  28.  The  Disciplinary  Law 
of  the  Church.  Its 
Similarity  to  the  Crim- 
inal Law  of  the  State 

§  29.  Growth  of  Criminal 
Power  of  the  Church. 
Privilege  of  Clergy. 
Union  of  the  Criminal 
Laws   of    the    Church 


79 


82 


and  State  under  the 
Prankish  Kings      .     .       83 

§  30.  Influence  of  the  Church's 
Right  of  Asylum.  Ac- 
quisition by  Church  of 
Temjioral  Jurisdiction       88 

§  31.  Variation  in  Extent  of 
the  Church's  Jurisdic- 
tion at  Different  Peri- 
ods. "  PoenjE  Medici- 
nales "  and  "  Poenae 
VindicativjB."  Defects 
of  Criminal  Law  of 
the  Church    ....       90 

§  32.  Heresy.  Ideal  of  Divine 
Justice  and  the  Mosaic 
Law.  Ultimate  Effect 
of  the  Criminal  Law 
of  the  Church     ...       92 


CHAPTER   IV 
MEDIEVAL   GERMANIC   LAW 


§  33i  Result  of  the  Degrada- 
tion of  the  Mass  of  the 
People 95 

§  34.    Feuds  and  Self-Redress. 

The  "  Landfrieden  "    .       96 

§  35.  Changes  in  the  Theory 
of  Specific  Crimes. 
Treason.  The  Inflic- 
tion of  Bodily  Injuries     101 


§  36.  Equality  Before  the  Law. 
Instigation,  Attempts, 
Negligence,  and  Pre- 
meditation. Moraliz- 
ing Tendencies  .     .     . 

§  37.  Effects  of  Changes  in  the 
Law  of  Proof.  Arbi- 
trary Character  of  the 
Law 


103 


104 


XIX 


CONTENTS 


§38.  Confusion  resulting  from 
the  Term  "  Frieden." 
Reversion  to  Primi- 
tive Conceptions.  Se- 
verity of  the  Law. 
Application  of  Mosaic 
Law.  Cruelty  of  the 
Punishments.  Fail- 
ure of  the  Law  .     .     . 

§  39.  Incidental  Circumstances 


107 


having  a  Demoralizing 
Influence.  Private 
Settlement  in  Cases  of 
Crime.  The  "  Grace  " 
of  the  Rulers.  Other 
Peculiar  Customs.  In- 
fluence of  Accidental 
Circumstances.  Un- 
certainty of  the  Court 
Procedure 112 


CHAPTER  V 

SCANDINAVIA  AND   SWITZERLAND  IN  THE   LATER   MIDDLE 

AGES 


A.     Scandinavia 


§  39a.  Early  Customary  Law. 
Primitive  Feuds  and 
Kin  Vengeance.  Pri- 
vate Fines.  Limita- 
tion of  Private  Ven- 
geance. Church 
ISlulcts 119 

§  396.  The  Provincial  Codes. 
Growth  of  Public 
Authority.  System  of 
Public     and     Private 


^  39c. 


Fines.  Procedure.  Ac- 
cessories. Elements  of 
the  ]\loney  Forfeitures. 
Forty-Mark  and 
Three-Mark  Causes. 
Outlawry.  Other  Pub- 
lic Punishments  .  . 
Penal  Legislation,  a.D. 
1300-1500.  Market- 
Town  Laws    .     .'  .     . 


125 


139 


B.     Switzerland 


§  39rf.  The  Common  Law  of 
the  Later  Middle  Ages 
(Peace ;    Pledged  and 


Commanded       Peace; 
Crimes;  Penalties) 


142 


CHAPTEE  VI 
FRANCE   IN   THE   LATER   MIDDLE   AGES 


§  39e.  General  Features  of 
Medieval  Criminal 
Law  in  France  .     .     . 


14G 


§  3,9/:    Specific  Crimes     ...     161 
§  Wg.    Punishments    ....     187 


CONTENTS 


TITLE   III 


THE  EENASCENCE,   THE   REEORMATIOX,  AXD    THE 

1700  s 


CHAPTER  YII 

GERMANY'S    RECEPTION   OF   TUE    ROMAN    LAW   IN    TUE 
EARLY   1500  s 


§  40.  ReasoDS  for  Reception  of 
the  Roman  Law.  Per- 
manent Features  of 
the  Germanic  Law. 
The  Italian  Jurists      .     202 

§  4L  Early  Law  Books  Intro- 
ducing the  Italian 
Legal  Doctrines  into 
German}'.  The  "  Bam- 
bergensis  Halsge- 
richtsordnung." Re- 
lation of  the  Bainber- 
gensis  to  the  Italian 
Legal  Learning  .     .     .     207 

§  42.  The  Penalties  of  the 
Bambergensis.  Rela- 
tion  of    the    Bamber- 


gensis to  the  Local 
Law.  Intrinsic  jNIerit 
of  the  Baml)ergensis. 
Recognition  of  the 
Bambergensis  Outside 
of  Bamberg    ....     211 

§13.  The  "Carolina."'  Local 
Opposition.  Tlie 
"  Saving  Clause"    .     .     '21') 

§  44.  Comparison  of  the  Caro- 
lina and  the  Bamber- 
gensis. Careless  ^Slan- 
ner  of  Publication. 
Varied  Application  of 
the  Carolina.  General 
Effect  of  the  Carolina     217 


CHAPTER  VIII 


GERMANY   IN   THE   LATE   1500  s   AND   THE   1600  s 


§  45.  Relation  of  the  Carolina 
to  the  Reformation. 
Religious  Tolerance. 
Unfortunate  Results 
of  the  Reformation 

§  46.  The  Literature  of  the 
1500  s  and  1  GOO  s.  The 
Jurisconsults  and  the 
Law  Faculties    •     .     . 

§  47.  Domination  of  Theology. 
Witchcraft.  Blas- 
phemy   

§  48.    Despotism  of  the  Rulers. 


221 


223 


226 
229 


§  49.  The  Crime  of  "  Lese  :\Iaj- 
este."  Other  Illustra- 
tions of  the  Despotism 
of  the  Rulers      .     .     .     230 

§  50.    Abuses  of  the  Criminal 

Law 232 

§  51.  Scantiness  of  Legisla- 
tion. Evasion  of  the 
Carolina;  Berlich  and 
Carpzov 233 

§  52.  Recognition  of  the  Prin- 
ciple of  Mitigating  Cir- 
cumstances.    Rise    of 


XXI 


CONTENTS 


Imprisonment  as  a 
Penalty.  Change  in 
Law  of  Troof      ...    237 


§  53.  Doctrines  as  to  Judicial 
Discretion  in  Defining 
Crimes 241 


CHAPTER   IX 


GERMANY   IN    THE   1700  s 


§  54:.  Beginnings  of  a  Change. 
Gradual  Suppression 
of  Witchcraft  Trials. 
Emancipation  from 
Theology  and  the  Mo- 
saic Law.  Effect  of 
Doctrine  of  Law  of 
Nature.  Signs  of 
Progress.  Kress  and 
Boehmer 243 

§  55.  The  Universities.  The 
Early  Treatises.  The 
New  Theories  of  Crim- 
inal Law  in  Italy  and 
France 246 


§  56.  Legislation  of  the  1700  s ; 
the  Bavarian  Code  of 
1751.  The  Austrian 
Theresiana.  The  Stat- 
utes of  Frederick  II  of 
Prussia 24S 

§  57.  The  Austrian  Code  of 
Joseph  II  of  1787.  Its 
System  of  Punish- 
ments. Its  Classifica- 
tions and  Definitions  .     251 

§  58.    The  Prussian  Landrecht 

of  1794 254 

§  59.    The    Austrian    Code   of 

1803 257 


CHAPTER  X 


FRANCE,   FROM   THE   1500  s   TO   THE   REVOLUTION 


§  59«.  General  Features ;  Lack 
of  a  Criminal  Code. 
Roman  Principles  in 
France 259 

§  oQb.  Discretionary  Character 

of  the  Penal  System   .     262 


§  59c.  Crime ;  General  No- 
tions and  Classifica- 
tion   265' 

§  .59r/.    Penalties  in  Use  .     .     .     268 
§  59e.    The  Several  Crimes  and 

Their  Punishments     .     27& 


CHAPTER   XI 
OTHER   COUNTRIES   IN   THE   1.500  s-1700s 


A.   Scandinavia 


§  59/.  Scandinavia  during  the 
Period  1500  s-1700  s. 
Private        Vengeance 


Prohibited.  Outlawry. 
Penalties.  Legislation 
in  the  1600  s.     ...     291 


XXll 


CONTENTS 


§59^. 


§  59«. 


§  Ö9y. 


The  1500  s  and  the 
1600  s;  The  Reforma- 
tion Period     .     .     .     . 


B.    Switzerland 

PAGE 

§  59Ä.   The  1700  s;  the  "  Auf- 
kläruncr "  Period     .     . 


297 


C.   Netherlands 


Sources  of  Criminal  Law 
in  the  Netherlands  be- 
fore the  1500s    .     ,     .     301 

The  Roman  Law  and 
the  Carolina.  The 
Constitutio  Criminalis 
Carolina,  and  the 
Criminal  Ordinances  .     302 


§  59Ä-.  General  Features  of  the 
Criminal  Law  from 
Later  Medieval  Times 
to  the  1700  s.  Charac- 
ter of  Criminal  Law 
of  this  Period.  The 
Reform  Movement  of 
the  Later  1700  s      .     . 


298 


306 


TITLE    IV 
THE   FREIs^CH   REVOLUTIONARY  PERIOD 


CHAPTER  XII 
THE   FRENCH    REVOLUTIONARY   REFORMS 


§  60a.  Reform  Movements  on  the 

Eve  of  the  Revolution     315 


§  GOb.   The  Code  of  1791,  and 
the  Code  of  Brumaire 


320 


CHAPTER   XIII 

THE   GERMAN   REFORMS   OF   THE    FRENCH    REVO- 
LUTIONARY  PERIOD 


§  61.  The  New  Direction  to 
German  Criminal  The- 
ory in  the  Late  1700  s. 
Grolmann  and  Feuer- 
bach.     The  Movement 


towards  Prison  Reform     325 
§  62.    Feuerbach  as  Legislator 
for  Bavaria.     The  Ba- 
varian Code  of   1813. 
Defects 328 


TITLE   V 
MODERX   TIMES 


CHAPTER   XIV 

THE  FRENCH  CODE  OF  1810,  AND  FRANCE  IN  THE 

ISOO  s 

§  62a.   The  Penal  Code  of  1810     335   I   §  62^.    Principal  Changes  dur- 

I  ing  the  1800  s      ...     338 

xxiii 


CONTENTS 


CHAPTER  XV 


GERMANY   SINCE 


§  G3.  The  Criminal  Codes  of 
the  First  Half  of  the 
1800  s.  Influence  of 
Feuerbach's  Bavarian 
Code.  Influence  of  the 
Political  Agitation  of 
1818 343 

§  01.    Legislation    in     Prussia. 

The  Code  of  18.51   .     .     348 

§  Go.  Influence  of  the  Prussian 
Code.  The  Bavarian 
Code  of  1861.  Other 
States 352 

§  66.  Progress  towards  Greater 
Legal  Unity  in  Ger- 
many. The  Draft  of 
1869  of  a  Criminal 
Code  for  North  Ger- 
many      353 


1813 

PAOE 

§  07.  The  Code  of  the  Nortli 
(Jerman  Confedera- 
tion. Its  Character. 
Opposition  in  the 
Reichstag.  Changes 
made  by  the  Reichstag. 
Criticism  of  the  Code. 
The  Code  of  the  North 
German  Confederation 
as  the  Code  of  the  Em- 
pire   355 

§  68.  The  Criminal  Law 
Amendment  Act  of 
1876.  Other  Criminal 
Laws 359 

§  69.    The     Draft      Code      of 

1909 362 


CHAPTER   XVI 


69rt. 


§  696. 


§  69rf. 
§  Q9e. 


OTHER   COUNTRIES   SINCE   1800 
A.    Austria 
Austrian  Legislation  since  1848 364 

B.    Netherlands  and  Belgium 
Netherlands      ....     365  |   §  69c.    Belgium 367 

C.    Scandinavia 

Denmark 367  I   §  69/.     Sweden 368 

Norway 368   |   §  69^.    Finland 369 


D.    Switzerland 


§  69A.    First  Period :  to  1830  .     370 
§  69i.    Second    Period :    1830- 

1848 372 

xxiv 


§  69J.    Third     Period :      since 

1848.   Political  Crimes     372 


CONTENTS 

PART   11 

HISTORY  OF  THE  THEORIES  OF  CRIMINAL 

LAW 

CHAPTER   I 


§70. 


§71. 
§72. 


ANCIENT   GREECE   AND   ROME 

PAGE 


Practical  Importance  of 

§73 

Theories   of    Criminal 

§74 

Law 

379 

The  Beginnings  of  Specu- 

lation.    The  Sophists 

381 

Socrates.     Plato     .     .     . 

382 

Aristotle 386 

Influence  of  Aristotle. 
The  Stoics.  The  Epi- 
cureans. Scepticism. 
Roman  Philosophy. 
Hierocles 387 


CHAPTER   II 


§76. 


THE   PHILOSOPHY   OF   CRIMINAL   LAW   IN   THE 
MIDDLE   AGES 


Attitude  of  the  Early 
Christians  towards  the 
Law.  Changed  Posi- 
tion of  Christianity  as 
a  State  Religion      •     .     392 

Views  of  Medieval  Phi- 


losophy as  Exemplified 
by  Thomas  Aquinas. 
The  Lack  of  Interest 
of  the  Medieval  Phi- 
losophers in  Criminal 
Law 393 


CHAPTER   III 


CRIIVnNAL   THEORIES   FROM   GROTIUS   TO   ROUSSEAU 


§  77.  Grotius.  Range  of  Pun- 
ishable Acts.  Amount 
of  Punishment.  Justi- 
fication of  Punishment 
from  the  Standpoint  of 
the  Criminal.  Defects 
and  Merits  of  Grotius     398 

§  78.  Hobbes.  Justification  of 
Punishment  from 
Standpoint  of  the 
Criminal 401 


§7-9. 


§80. 


§8L 


Spinoza.      Intliiences   of 

Spinoza's    Life     upon 

his  Work 404 

Pufendorf.     Comparison 

with  his  Predecessors. 

Value  of  his  Work  .  406 
Other    Writers.     Locke. 

Leibnitz.  Cocceji. 

Thomasius  and  Wolff. 

Rousseau 409 


XXV 


CONTENTS 


CHAPTEK   IV 
CRIMINAL    THEORIES   FROM   BECCARIA   TO   FEUERBACII 


§  82.  Beccaria.  Defects  and 
Merits  of  Beccari'a's 
Work.  Latei-  Writers. 
Filangieri 

§  83.    Globig  and  Huster     .     . 

ij  84.    Servin.     Wieland  .     .     . 


413 
417 
418 


§  85.    Kant.         Criticism       of 

Kant's  Theory    .     .     .     4"22 

§  8f).    Fichte 424 

§87.    Grolniann.  The  "Special 

Prevention  "  Theory    .     427 

§  88.  Feuerbach.  His  Theory. 
Criticism  of  his 
Theory 428 


CHAPTEE   V 


CRIMINAL   THEORIES   FROM   BENTHAM   TO   IIERBART 


§  89.  Benthani.  Romagnosi's 
Theory  of  Necessary 
Defense.  Difference 
between  Romagnosi 
and  Feuerbach.  De- 
fects of  the  Theory  of 
Necessary  Defense. 
Oersted 435 

§  90.  Bauer.  The  "  Admoni- 
tion "  Theory      .     .     .     439 

§  91.  The  Reaction  against 
Feuerbach 's  Theory  of 
Deterrence.     Schulze  .     441 

§  92.  Theory  of  Reformation 
Founded  upon  De- 
terminism. Groos. 
Krause.  Ahrens.  Rö- 
der 442 


§  93.  The  "  Restitution  "  or 
"  Compensation  "  The- 
ory.    Hepp    ....     447 

§  94.  Changes  in  the  Absolute 
Principle  of  Criminal 
Law.  C.  S.  Zachariä. 
Henke 451 

§  95.  Combination  of  the  Ab- 
solute and  Relative 
Purposes.  Rossi.  Haus. 
Ortolan.  Gabba.  Von 
Preuschen.  Mohl. 

Mittermaier.     Henrici     4.52 

§  96.  Herbart's  Retribution 
Theory  of  ^Esthetic 
Judgment.     Geyer      .     455 


CHAPTER  VI 


CRIMINAL   THEORIES   IN   GERMANY   FROM   HEGEL 
TO   BINDING 


§  97.  Theory  of  the  Negation 
of  Wrong.     Hegel  .     . 

§  98.    Modern  Theological 

Tendencies.  Stahl. 

Schleiermacher.  Daub 


460 


464 
xxvi 


§  99.  Later  Developments  of 
Hegel's  Theory. 
Abegg.  Heffter.  Köst- 
lin.  Merkel.  Hälsch- 
ner.     Berner.     Kitz    . 


470 


CONTENTS 


§100.  Combination  of  the  The- 
ories of  Hegel  and 
Ficlite.     Ileinze      .     .     482 

§  101.  Von  Kirchmann.  Scho- 
penhauer. Diihring, 
E.  vou  Hartraanu,  von 
Liszt 486 


§  10"2.    Binding's      Theory     of 


the  Effect  of  Disobe- 
dience to  a  Kule. 
Laistner.  Modern 
Theories  of  Crim- 
inality outside  of 
Germany 492 


APPENDIX 

VON   BAR'S  CRITIQUE   OF   THE    THEORY  OF   CRIM- 
INAL  LAW 407 

INDEX .549 


XXVll 


EDITORIAL   PREFACE 
By   JOHN   HENRY  WIGMORE' 

It  is  a  little  curious  that  the  history  of  the  criminal  law  has 
been  so  scantily  expounded  by  scholars,  —  scantily,  that  is,  in 
relation  to  the  other  parts  of  the  law.  Of  public  law  in  general, 
there  are  histories  enough.  Of  the  civil  law,  there  is  an  abun- 
dance of  histories,  alike  for  the  particular  doctrines  and  for  the 
entire  system,  in  summary  and  in  extended  detail,  and  for  almost 
every  country  of  the  Continent.  And  a  history  of  the  sources 
of  the  law  is  still  more  popular  in  its  attraction ;  most  of  the  so- 
called  histories  of  Spanish  law,  for  example,  include  nothing  beyond 
this  part  of  the  field.  But  the  criminal  law  has  remained  largely 
without  patronage. 

One  might  speculate  over  this  lack.  The  field  is  vast ;  yet  the 
others  are  vaster.  The  criminal  law  is  younger,  —  that  is,  it 
separates  distinctly  from  civil  or  pri^•ate  law  at  a  period  much 
less  than  a  thousand  years  ago ;  yet  this  should  only  make  it  more 
tempting.  There  is  in  criminal  law  less  of  generic  principle 
continuously  developing  in  definite  traceable  changes,  and  thus 
less  logical  interest ;  yet  this,  while  it  may  repel  some  minds,  ought 
to  attract  others. 

Perhaps  it  is  the  miscellaneous  breadth  of  the  sul)jcct  wiiich 
has  warned  off  all  but  the  most  courageous.  For  tlie  history  of 
the  criminal  law  is  partly  also  the  history  of  crime  itself,  i.e.  the 
history  of  social  conditions  and  habits  infinitely  changing;  and 
is  partly  the  history  of  certain  large  moral  attitudes  in\()hing  the 
traits  of  whole  epochs,  —  intent,  moral  responsibility,  family  and 
feudal  solidarity,  pardon,  purposes  and  modes  of  repression  and 

1  Professor  of  the  Law  of  Torts  and  of  E\ndenee  in  Xortliwi'stern 
University;  former  President  of  the  Amerioan  Institute  of  Oimiiial  Law 
and  Crimmology ;  Chairman  of  the  Editorial  Committee  for  <    =-•  series. 

xxix 


EDITORIAL    PREFACE 

punishment,  metliods  of  trial.  To  disentangle  and  trace  all  the 
aspects  and  details  of  modern  criminal  law  in  their  development 
amidst  the  congeries  of  law,  morals,  religion,  and  custom  in  suc- 
cessive past  epochs,  is  a  huge  and  delicate  task,  which  might  well 
make  the  boldest  historian  halt. 

For  an  example,  take  the  penalty  of  imprisonment.  When 
there  were  no  prisons,  this  mode  of  punishment  or  repression  would 
of  course  be  non-existent.  And  the  prison  as  a  mode  of  punish- 
ment is  a  fairly  modern  device.  But  how  can  we  to-day  conceive 
of  penal  law  without  prisons?  And  so  here  we  are  plunged  at 
once  into  the  history  of  ideas  of  penal  law,  of  social  conditions,  of 
judicial  methods,  in  different  communities. 

Take  again,  the  crime  of  forgery.  In  the  days  before  the  rise 
of  the  seal  —  that  is,  before  the  1200  s  —  the  monkish  forgeries 
of  parchment  title-deeds  formed  one  of  the  most  extensive  of 
crimes.  Upon  the  rise  of  the  seal,  this  crime  takes  on  a  new  aspect. 
Three  centuries  later,  with  the  spread  of  printing  and  the  famil- 
iarity with  writing,  the  setting  of  the  crime  shifts  again.  And 
in  the  nineteenth  century,  in  the  United  States,  the  universal 
upspringing  of  local  banks  and  a  private  bank-note  currency, 
brings  into  existence  on  a  large  scale  a  variety  of  forgery  before 
unknown  anywhere.  And  finally,  with  the  suppression  of  State 
banks  and  the  institution  of  a  Federal  detective  force,  this  crime 
almost  disappears  from  practice  within  two  generations,  while 
the  law  remains  on  the  books  as  a  dry  enactment,  signifying  little 
in  the  development  of  ideas.  And  (to  pursue  another  aspect  of 
the  same  crime)  the  contrast  between  the  notarial  system  of  the 
Continent  and  its  non-existence  in  England  and  America,  and 
between  the  administrative  systems  of  the  same  countries,  has 
left  its  mark  in  radical  differences  of  the  legal  definition  of  the 
crime  of  falsification  of  documents,  —  differences  so  important 
that  in  more  than  one  modern  instance  the  terms  of  extradition 
treaties  have  proved  futile. 

Take  one  more  instance,  the  related  crimes  of  robbery  and 
larceny.  Different  systems  and  different  epochs  have  varied 
widely  in  defining  the  legal  scope  of  the  Commandment.  The 
Romans  punished  most  rigorously  open  violence,  and  were  lenient 
with  surreptitious  larceny ;  while  the  early  Germans  strictly 
penalized  secret  theft,  but  cared  little  or  nothing  to  repress  rob- 
bery. The  explanation  must  be  sought  in  the  traditions  and 
temper  of  these  peoples. 

XXX 


EDITORIAL    PREFACE 

Without  such  a  background,  the  history  of  the  criminal  law 
may  degenerate  into  a  mere  catalogue  of  penalties  and  definitions. 
And  this  simply  antiquarian  treatment  of  it  characterizes  the 
earlier  historians.  Only  in  very  modern  times  —  presumably 
as  a  part  of  the  evolutionary  view  of  history  —  has  the  method 
changed.  Of  the  few  histories,  those  worth  reading  to-day  are 
fewer.  Perhaps  we  do  not  realize  as  we  should  that  in  Sir  James 
Fitzjames  Stephen's  "History  of  the  English  Criminal  Law" 
and  Mt.  L.  Ow^en  Pike's  "History  of  Crime  in  England  ",  taken 
in  combination,  we  possess  an  account  such  as  no  other  single 
country  possesses,  — -  except  perhaps  Italy. 

An  ideal  history  of  the  criminal  law  should  cover  three  fields : 
first,  the  history  of  criminal  law  in  general,  —  its  moral  and  polit- 
ical ideas,  its  legislative  movements,  its  general  legal  doctrines, 
and  its  penal  methods ;  secondly,  the  history  of  specific  crimes  as 
defined  by  the  law  ;  and  thirdly,  the  history  of  crime  itself,  —  its 
practices,  methods,  and  causes.  But  no  such  ideal  history  exists 
in  print,  —  nor  in  prospect  for  some  time  to  come.  What  we  do 
find  is  a  very  few  good  histories  of  the  first  sort,  for  the  separate 
countries ;  a  few  inadequate  accounts  of  the  second  sort ;  and  a 
few  good  accounts  of  the  third  sort,  —  of  which  Mr.  Pike's  is  the 
best  and  the  only  comprehensive  and  notable  one. 

Of  the  first  sort.  Professor  von  Bar's  history,  here  translated, 
is  perfect  of  its  kind,  and  is  the  only  one  for  Germany.  ]\Iore- 
over,  it  supplies  incidentally  many  details  of  the  second  and  the 
third  sort  of  histories.  It  has  so  large  a  scope,  beginning  with 
Roman  criminal  law,  and  tracing  the  amalgamation  of  Germanic 
and  Roman  law  under  successive  influences  to  modern  times  — 
that  it  serves  well,  with  supplementary  chapters  for  other  coun- 
tries, as  a  history  of  Continental  criminal  law.  —  For  France, 
there  is  no  adequate  modern  volume.  Du  Boys'  history  (pub- 
lished in  1874),  though  sound  in  scholarship,  is  on  the  older  lines. 
Glasson's  chapters  in  his  eight-volume  "History  of  French  Law 
and  Institutions"  (unfinished  at  his  death  in  1907)  carry  the 
story  only  to  the  1500s;  Stein's  "History  of  French  Criminal 
Law"  only  to  the  1700s.  None  of  the  other  general  histories 
cover  the  criminal  law.  —  For  Italy,  the  splendid  general  histories 
of  modern  scholars  give  adequate  space  to  criminal  law.  That 
of  Calisse  is  translated  as  a  part  of  \o\.  \\\  of  this  Series,  "His- 
tory of  Italian  Law" ;  the  plan  of  this  Series  required  that  align- 
ment.    Italy  has  been  the  home  of  most  of  the  new  movements  in 

xxxi 


EDITORIAL   PREFACE 

cTiminal  law ;  and  the  history  of  its  criminal  law  will  serve  as  the 
proper  prelude  to  the  present  volume.  —  For  Spain,  no  history  of 
the  criminal  law  has  been  published,  not  even  as  a  part  of  a  work 
in  },'encral  history;  except  Du  Boys'  "History  of  Criminal  Law 
on  Spain"  (pul)lislied  in  French  in  1872,  and  later  translated  into 
Spanish  in  1874),  which  is  of  the  older  type.  —  For  Scandinavia, 
Denmark  is  well  provided  in  the  general  histories  by  Stemann 
(here  used)  and  Matzen;  the  former  of  these  dates  in  1871,  the 
latter  in  1893-7 ;  but  the  late  Professor  Matzen's  work,  though  a 
most  distinguished  piece  of  modern  scholarship,  is  in  its  treatment 
unsuitable  for  the  present  purpose.  Norway  has  no  history  of 
its  own,  on  this  subject,  but  is  adequately  covered  by  the  Danish 
works.  Sweden  has  no  work  of  its  own.^  —  For  Switzerland, 
Pfenninger's  "Swiss  Criminal  Law"  is  mainly  historical,  and  its 
chapters  have  here  been  drawn  ujjon.  —  For  Austria,  von  Bar's 
treatise  supplies  a  full  understanding.  —  P^or  the  Netherlands, 
G.  A.  Van  Hamel's  "Introduction  to  the  Dutch  Criminal  Law" 
contains  a  short  history  (here  used) ;  no  other  modern  account 
has  been  published.  —  For  the  Continent  as  a  whole,  needless 
to  say,  no  other  history  is  in  print.^  But  a  brilliant  beginning 
has  been  made  in  Makarewicz's  "Introduction  to  the  Philosophy 
of  Criminal  Law  on  Historical  Principles"  (1906).  This  work 
covers  only  the  leading  ideas  of  criminal  law  from  its  beginning 
in  primitive  communities,  with  some  attention  to  modern  sur- 
vivals and  to  specific  crimes ;  but  does  not  follow  out  the  succes- 
sive stages  of  each  one  in  completion,  nor  trace  the  general  move- 
ments of  legislation.     It  is  an  earnest  of  the  great  possibilities 

1  Jaakko  Forsmaiin's  "  Pöreläsningar  (Anteckningar)  öfver  straffrättens 
allmänna  läror"  (Helsingfors,  1900),  and  " Föreläsningar  öfver  de  sär- 
skilda  brotten",  parts  I-III  (left  unfinished  at  the  author's  death)  begins 
each  chapter  with  a  brief  historical  survey  of  the  topic,  but  does  not  offer 
a  connected  systematic  treatment ;  moreover,  it  deals  primarily  with 
Finland's  law. 

'^  Albert  Du  Boys  had  indeed  planned  the  work  on  a  large  and  worthy 
scale.  His  "Histoire  du  droit  criminel  des  peuples  aneiens"  (1845), 
stopping  at  the  Christian  era,  was  followed  by  his  "Histoire  du  droit 
criminel  des  peuples  modernes"  (1854-1860) ;  Volume  I  for  the  Teutonic 
period.  Volume  II  for  the  feudal  period.  Volume  III  for  England.  Then 
came  his  "Histoire  du  droit  criminel  de  TEspague"  (1870),  and  "Histoire 
du  droit  criminel  de  la  France,  XVr"''-XIX""' sieele,  compare  avec  celui 
de  ritalie,  de  I'AUemagne,  et  de  I'Angleterre"  (1874,  2  vols.).  But 
his  method  was  behind  the  times,  even  then  ;  and  the  undertaking  was 
beyond  his  powers.  The  great  conception  and  the  forty  years'  toil  were 
for  us  fruitless.  And  this  futility  of  it  gives  us  a  sentiment  of  sadness 
as  we  read  his  farewell  preface,  in  which  he  announces  the  termination  of 
his  task,  "un  plan  si  vaste,  que  parfois  il  nous  a  semble  etre  au  dessus  de 
nos  forces." 

xxxii 


•EDITORIAL    PREFACE 

of  the  subject  when  treated  by  a  master  hand ;  and  we  may  hope 
that  its  author  will  end  by  producing  a  systematic  treatise  includ- 
ing all  aspects  of  the  subject. 

Of  histories  of  the  second  sort  —  specific  crimes  —  no  complete 
modern  treatise  exists  for  any  country,  much  less  for  the  whole 
of  the  western  Continent ;  though  each  of  the  above-mentioned 
works  contains  naturally  more  or  less  of  this  material.  There 
are,  however,  two  works  from  which  one  may,  if  in  need,  piece 
together  a  fairly  connected  account  of  the  history  of  specific 
criminal  definitions :  S.  Mayer's  "History  of  Criminal  Law  from  the 
time  of  ]Moses,  Solon,  etc.,  to  the  Present  Day",^  and  O.  Q.  Van 
Swinderen's  "Summary  of  existing  Penal  Laws  in  Netherlands 
and  other  Countries."  -  The  former  work,  full  of  varied  learning, 
takes  up  the  various  crimes  in  order,  and  examines  their  definitions 
in  Greek,  Roman,  Jewish,  Canon,  and  medieval  German  law,  with 
brief  references  to  modern  Continental  legislation ;  but  the  treat- 
ment is  that  of  the  older  school,  and  there  is  no  background  and 
no  tracing  of  evolution.  The  latter  work,  a  superb  study  of  mod- 
ern comparative  criminal  law  m  its  definitions  and  policies,  pref- 
aces each  chapter  with  a  page  or  two  of  history  for  Roman  and 
medieval  German  and  French  law ;  but  these  united  pages  would 
not  suffice  as  a  connected  history.  After  Makarewicz  as  a  basis, 
]\Iayer  and  Van  Swinderen,  perused  together,  would  pro\ide  the 
student  with  an  excellent  makeshift,  until  an  adequate  history 
of  this  part  of  the  field  is  written. 

The  foregoing  summary  will  serve  to  show  the  scope  of  the 
available  sources  of  knowledge  for  the  history  of  Continental 
criminal  law,  and  to  explain  why  von  Bar's  work  was  selected  by 
the  P^ditorial  Committee  as  the  most  serviceable.  It  may  be 
noted  that  the  plan  of  choosing  a  treatise  centering  on  one  coun- 
try, and  of  supplementing  it  by  chapters  for  other  countries,  was 
employed  by  the  Committee  (as  stated  in  the  General  Introduc- 
tion) for  the  three  subjects  of  Criminal  Law,  Criminal  Procetlure 
and  Civil  Procedure. 

It  remains  to  cite  the  books  and  essays  here  translated,  and  to 
give  an  account  of  the  collaborators. 

The  Works  Translated.  Professor  \on  Bar's  work,  form- 
ing the  main  part  of  this  volume,  is  entitled  "Geschichte  des 
deutschen    Straf  rechts  und  der  Straf  rechtstheorien."     It  is  here 

1  "Geschichte  der  Strafrechte,  etc.",  Trier,  1876. 

2  "  Esquisse  du  droit  penal,  etc.",  9  vols.,  Groningen,  1901-12. 

xxxiii 


EDITORIAL    PREFACE 

translated  in  full,  —  with  the  exception  of  the  section  on  the 
French  Revolutionary  and  Napoleonic  Codes,  replaced  by  the  pref- 
erable chapter  of  Professor  Garraud.  Von  Bar's  work  appeared 
in  1882,  and  has  remained  authoritative.  The  distinguished 
author  wrote  to  the  Committee  in  1911  that  he  was  satisfied  not 
to  make  any  changes  in  the  text :  "  the  later  investigations  have 
not  been  such  as  to  give  me  any  reason  to  make  any  substantial 
changes  in  the  text."  Nevertheless,  to  bring  down  to  date 
its  account  of  the  modern  legislation,  to  add  citations  of  later 
literature,  and  to  supply  brief  accounts  of  the  history  in  the  coun- 
tries not  covered  by  his  work,  certain  additions  were  necessary. 

The  legislation  of  the  1800s  in  Scandinavia  and  the  Nether- 
lands, and  since  1877  in  Germany  and  Austria,  is  described  by 
Dr.  von  Thot,  in  sections  written  for  the  purpose.  The  same 
author  has  added  citations  of  historical  literature. 

For  the  Netherlands,  the  section  on  the  history  to  the  1800  s 
was  taken  from  Professor  G.  A.  Van  Hamel's  "Inleiding  tot  de 
Studie  van  het  Nederlandsche  Strafrecht"  (2d  ed.,  1907,  §  6,  pp. 
54-77;  the  third  edition,  1913,  does  not  change  the  text). 

For  Scandinavia,  the  section  on  the  Danish-Norwegian  history 
to  the  1800  s  was  taken  from  Chief  Justice  L.  E.  Stemann's  "Den 
danske  Retshistorie  indtil  Kristian  V.'s  Love"  (1871,  Part  V,  §§ 
101-107,  pp.  572-647),  with  amplifications  from  the  well-known 
earlier  w^orks  of  J.  L.  A.  Kolderup-Rosenvinge,  "Grundrids  af 
den  danske  Retshistorie"  (3d  ed.,  1860,  §§  163-165)  and  of  J.  E. 
Larsen,  " Forelaesninger  over  den  danske  Retshistorie"  (1861, 
§§  163-165,  supplementing  the  former  work). 

For  Switzerland,  the  sections  consist  of  an  abstract  by  the 
Editor  based  on  Professor  Heinrich  Pfenninger's  "Das  Strafrecht 
der  Schweiz"  (1890). 

For  France,  three  works  were  drawn  upon.  For  the  period 
from  the  feudal  system  till  the  1500  s  was  used  the  late  Professor 
Glasson's  "Histoire  du  droit  et  des  institutions  de  la  France" 
(1887-1903,  Vol.  VI,  ch.  XII,  pp.  640-705).  For  the  period  from 
the  1500  s  to  the  1700  s  was  selected  Professor  L.  von  Stein's 
"Geschichte  des  französischen  Straf  rechts  und  des  Processes" 
(2d  ed.,  1875,  being  Vol.  III  of  Warnkönig  and  Stein's  "Französ- 
ische Staats-  und  Rechtsgeschichte",  Part  IV,  Tit.  IV,  pp.  608- 
630).  For  the  Revolutionary  and  modern  period  were  taken  some 
introductory  pages  of  Professor  Garraud's  "Traite  theorique  et 
pratique  du  droit  penal"  (6  vols.,  1898-1902). 

xxxiv 


EDITORIAL    PREFACE 

For  Spain  and  Portugal,  no  suitable  account  seems  anj'where 
to  exist. 

For  Italy,  the  reader  is  referred  to  Professor  Calisse's  work,  in 
Vol.  \ll  of  the  present  Series.  The  chapters  of  Professors  von 
Bar,  Van  Hamel,  and  Glasson,  here  translated,  point  out  the  influ- 
ence of  Italian  jurists  on  the  law  of  the  other  countries. 

The  Authors.  Carl  Ludwig  vox  Bar  was  born  in  1S3G, 
at  Hannover,  and  died  August  20,  1913.  After  a  few  years'  ser- 
vice on  the  Appellate  Court  at  Göttingen,  he  became  professor 
at  Rostock,  then  at  Breslau,  and  finally  at  Göttingen  (1S79), 
where  he  had  taken  his  degree  and  where  he  remained  till  the  end 
of  his  life.  His  early  interest  was  in  criminal  law ;  and  the  long 
list  of  his  published  works  in  that  field  extended  to  his  closing 
years.^  But  he  was  led  also  into  the  study  of  problems  of 
international  criminal  law,  and  thence  into  international  law 
at  large,  both  public  and  private ;  and  in  this  field  he  acquired 
an  authority  which  led  him  to  be  known,  in  other  countries, 
chiefly  as  an  international  jurist.  His  "  Das  Internationale  Privat- 
und  Strafrecht"  (1862)  was  here  his  first  work,  later  expanded 
as  a  "Lehrbuch  des  internationalen  Privat-  und  Strafrecht'' 
(1892);  and  his  "Theorie  und  Praxis  des  internationalen  Pri- 
vatrechts" (2  vols.,  2d,  ed.,  1889),  translated  into  English  (by 
G.  R.  Gillespie)  as  "The  Theory  and  Practice  of  Private  Inter- 
national Law"  (2d  ed.,  1892;  1st  Amer.  ed.  Boston,  1883), 
made  his  name  familiar  among  English-speaking  lawyers.  Indeed, 
it  was  on  English  soil,  at  Oxford,  that  his  sudden  death  took  place, 
during  the  meeting  of  the  Institute  of  International  Law ;  of 
which  he  had  been  one  of  the  founders,  forty  years  before.  He 
also  possessed  the  distinction  of  being  one  of  the  members  of  the 
International  Arbitration  Court  at  the  Hague,  and  had  received 
numerous  academic  honors  from  the  Universities  of  Bologna, 
Cambridge,  Padua,  and  elsewhere. 

1  "Recht  und  Beweis  im  Gesell wornengerieht "  (18G5) ;  "Die  Grund- 
lagen des  Strafreehts"  (1869);  "Die  Lehre  von  Causalzusanunenhange 
im  Rechte,  besonders  im  Strafrecht  "  (1871) ;  "Zur  Frage  des  Geschwornen- 
und  SchötTengcriehte"  (1873);  "Kritik  des  Entwurfs  der  deutsehen 
Strafprozessordnung"  (1873)  ;  "Grundriss  zu  Vorlesungen  über  deutsches 
Strafrecht"  (2d.  ed.,  1878);  "Systematik  des  deutschen  Straf |)rozess- 
rechts"  (1878);  "Handbuch  des' deutschen  Strafrechts"  (of  which  the 
"Geschichte"  here  translated,  was  Vol.  1,  but  the  only  one  pul>lished) ; 
"Probleme  des  Strafrechts"  (189(3)  ;  "Die  projektirte  Reform  des  italien- 
ischen Strafprozesses"  (1902);  "Die  Reform  des  Strafrechts"  (1903); 
"Gesetz  und  Schuld  im  Strafrcclit  ;  Fragen  des  geltenden  deutschen 
Strafrechts  und  seine  Reform"  (3  vols.,  1900-09). 

XXXV 


EDITORIAL   PREFACE 

Von  Bar  was  in  politics  a  pronounced  liberal,  and  for  a  few- 
years  held  a  seat  in  the  Reichstag.  But  owing  to  his  deep  flisaf- 
fection  to  the  Bismarckian  policies  (dating  from  his  early  years,  as 
a  native  of  Hannover,  where,  before  the  German  Empire  was 
consolidated,  political  disagreements  were  marked),  he  never  held 
any  government  office.  In  his  later  years,  when  his  influence 
in  the  Institute  of  International  Law  had  become  so  notable,  he 
took  a  prominent  part  as  a  pacifist,  and  became  a  Councillor  of 
the  Interparliamentary  Union  and  President  of  the  International 
Union  for  Mutual  Understanding.  It  was  a  symbol  of  his  deep  in- 
terest in  these  movements  that  his  death  came  on  the  very  eve  of  a 
journey  to  attend  the  dedication  of  the  Peace  Palace  at  the  Hague. 

Ladislas  von  Thot  is  a  native  of  Hungary,  and  has  been  judge 
of  the  criminal  court  in  Budapest,  He  is  a  Fellow  of  the  Pioyal 
Academy  of  Spain,  Corresponding  Fellow  of  the  Royal  Academies 
of  Italy  and  of  Greece,  of  the  Petrograd  Imperial  Society  of  Ju- 
rists, etc.  His  astonishing  command  of  many  foreign  languages 
has  enabled  him  to  pursue  comparative  researches  of  wide  scope. 
His  lengthy  essay  in  "Der  Gerichtsaal"  (1912,  LXXIX,  pp.  142- 
392)  on  "  Die  Geschichte  der  ausserdeutschen  Strafrechtsliteratur  ", 
with  its  vast  array  of  bibliography,  is  a  sufficient  evidence  of  his 
extraordinary  mastery  of  the  literature  of  the  subject.  The  list  of 
the  titles  of  his  published  works  exhibits  an  unequalled  versatility.^ 

G.  A.  Van  Hamel,  the  veteran  professor  (now  retired)  of  the 
University  of  Amsterdam,  has  long  been  recognized  as  one  of  the 
great  figures  of  modern  times  in  criminal  law.  With  Franz  von 
Liszt,  of  Berlin,  and  Adolphe  Prins,  of  Brussels,  he  founded  the 
International  Union  of  Criminal  Law,  —  the  body  with  which 
the  American  Institute  of  Criminal  Law  and  Criminology  is 
affiliated  as  a  national  group.  His  writings  on  criminal  law  have 
been  prolific,^  and  his  scholarly  authority  is  unexcelled. 

Kristian  Ludwig  Ernst  Stemann    (1802-1876)   was   one   of 


1  "Storia  del  diritto  penale  europeo",  in  "II  progresso  del  diritto 
criminale",  ed.  Carnevale  (Vols.  I-IV,  passim,  1909-1913);  "Droit 
penal  oriental",  in  "Mittheilungen  der  internationalen  Icriminalistischen 
Vereinigung"  (Vol.  XIX,  1912,  pp.  110-227);  " Gesehiedenis  van  het 
italiensche  Straf  regt ",  in  "Proceedings  of  the  Royal  Flemish  Academy  "  ; 
etc. 

-Besides  the  work  here  translated  from  may  be  mentioned:  "De 
tegenwoordige  Beweging  van  het  Strafreeht"  (1891),  numerous  reports 
in  the  "Mittheilungen  der  internationalen  kriminalistischen  Vereinigung" 
(above  mentioned),  and  articles  in  the  "Tijdschrift  voor  Strafreeht",  of 
which  he  is  an  editor. 

XXX  vi 


EDITORIAL    PREFACE 

Denmark's  notable  jurists  and  legal  historians,  and  President  of 
the  Schleswig  Court  of  Appeal  from  1852  to  1864.^ 

Heixkich  Pfexxixger  (184G-1896)  was  associate  professor 
in  the  Faculty  of  Law  of  the  University  of  Zürich  from  1891  till 
his  death ;  his  chosen  field  was  that  of  criminal  law.- 

Erxest  Desire  Glassox  (1837-1907)  was  professor  of  Civil 
Procedure  in  the  Faculty  of  Law  of  the  University  of  Paris  from 
1879  until  his  death  in  1907.  Besides  his  work  in  that  field,  he 
is  best  known  for  his  "Ilistoire  du  droit  et  des  institutions  de  la 
France"  (1887-1903),  which  had  proceeded  to  eight  volumes  at 
the  time  of  his  death,  and  had  then  reached  only  the  period  of  the 
1500  s  (with  some  portions  completed  into  the  1700  s). 

LoREXZ  vox  Steix  (1813-1890)  pursued  a  long  and  distin- 
guished career  as  economist,  historian,  and  jurist,  in  professorates 
at  Kiel  (1846)  and  Vienna  (1855).  His  contributions  to  law  and 
political  science  were  numerous.^  His  "Französische  Rechts- 
geschichte", written  in  collaboration  with  Warnkönig,  and  their 
other  joint  work,  "Flandrische  Rechtsgeschichte",  remain  as 
scholarly  monuments,  and  are  marked  by  a  penetration  and  wis- 
dom having  an  unusual  flavor  of  modernity. 

Leopold  August  ^YARXKÖXIG  (1794-1866)  was  professor  of 
law  at  Liege,  Louvain,  Ghent,  Freiburg,  and  Tübingen.  His 
special  field  was  legal  history,  and  for  some  time  he  served  on  the 
Royal  Belgian  Commission  for  editing  Belgian  historical  sources ; 
one  consequence  of  which  is  Belgium's  possession  to-day  of  a 
superb  series  of  critically  edited  medieval  legal  sources.'* 

Frax^ois  Garraud,  professor  in  the  Faculty  of  Law  at  Lyon, 
stands  as  the  preeminent  modern  French  author  on  criminal  law 


'  His  other  principal  works  were:  "Sehleswig's  Rechts-  und  Gerichts- 
fassung im  17«en  Jalirhundert"  (1855);  "Geschichte  des  öffentlichen  und 
Privatrecht  des  Herzogthums  Schleswig"  (1866-67). 

-His  other  publications  were:  "Der  Begriff  des  politischen  Ver- 
brechens" (Schweiz.  Juristenvereins-Versammlung.  XVIII,  Bern.  1880); 
"Entwurf  eines  Strafgesetzbuch  für  den  Canton  Uri"  (Frauenfeld,  1894) ; 
"Grenzbestimmungen  zur  CriminaUstisehen  Imputationslehre"  (Fest- 
schrift für  Berner,  Zürich,  1892). 

'  "Geschichte  der  socialen  Bewegung  in  Frankreich  von  1789  bis  auf 
unsere  Tage"  (1850);  "System  der  Staatswissenschaften"  (1852-.")7); 
"Lehrbuch  der  Volkswirtschaft"  (1858,  1878);  "Die  Verwaltungslehre" 
(1865-68,  7  vols.);  "Gegenwart  und  Zukunft  der  Rechts-  und  Staats- 
wissenschaft Deutschlands"  (1876). 

^  Among  his  principal  works  may  be  named:  "Commentarii  juris 
romani  privati"  (1825-32);  "  F'landrische  Staats-  und  Rechtsgeschichte 
bis  1305"  (1834-42)  ;  "Histoire  externe  du  droit  romain"  (1836)  ;  "His- 
toire  du  droit  belgique"  (1837);    "Histoire  des  Carolingiens "  (1862). 

xxxvii 


EDITORIAL    PREFACE 

and  proccflurc.  In  his  works  the  French  combination  of  solid 
schohirship,  exegetic  clarity,  and  philosophic  breadth,  is  seen  at 
its  l)est.  Chapters  of  his  treatise  on  Criminal  Procedure  are  also 
used  to  supi)l(Mncnt  the  translated  text  of  Professor  Esmein's 
"History  of  Criminal  Procedure",  forming  Vol.  \  of  the  present 
Series. 

The  Translators.  For  the  main  work,  von  Bar's  "His- 
tory", and  von  Thot's  additions,  the  translator  is  Thomas  S.  Bell, 
now  of  the  Los  Angeles  Bar.  ]\Ir.  Bell,  after  graduating  from 
the  University  of  Colorado,  and  going  as  Rhodes  Scholar  to  Oxford 
University,  completed  there  a  course  in  law  and  jurisprudence 
and  was  later  (1908)  Fellow  in  Jurisprudence  at  Columbia 
University.  He  afterwards  practised  for  a  time  at  the  Tacoma 
Bar,  and  was  lecturer  on  International  Law"  in  the  University  of 
Washington. 

For  Stemann's  chapter,  the  translator  is  John  Walgren  of  the 
Chicago  Bar,  who  is  also  the  translator  of  the  Scandinavian 
chapter  in  Vol.  I  of  this  Series,  "General  Survey  of  Continental 
Legal  History";  a  further  statement  of  his  attainments  is  there 
made. 

For  the  chapters  from  Garraud  and  Glasson,  the  translator  is 
Alfonso  de  Salvio,  assistant  professor  of  Romance  Languages 
in  Northwestern  L^niversity ;  he  is  also  the  translator  of  the  trea- 
tise of  De  Quiros  on  "INIodern  Theories  of  Criminality"  in  the 
Modern  Criminal  Science  Series  (published  under  the  auspices 
of  the  American  Institute  of  Criminal  Law"  and  Criminology). 

For  the  chapter  from  von  Stein,  the  translator  is  Robert 
Wyness  ]Millar,  professor  of  Criminal  Law  and  Procedure  and  of 
Civil  Procedure  in  Northwestern  University,  and  translator  also 
of  Engelmann's  "History  of  Continental  Civil  Procedure"  in  the 
present  Series,  and  of  Garofalo's  "Criminology"  in  the  ^Modern 
Criminal  Science  Series. 

For  Van  Hamel's  chapter,  the  translator  is  T.  de  Vries,  lately 
professor  of  ^Modern  Languages  at  Calvin  College  ([Michigan), 
and  also  (on  the  Holland  Society's  foundation)  of  the  Dutch 
Language  and  Literature  at  the  University  of  Chicago ;  author 
of  numerous  valuable  works  in  Dutch,  including  a  history  of 
Sundav  Observance  Legislation. 


xxxvni 


EDITORIAL    PREFACE 

Scope  of  the  Story.  Rome  and  the  Germanic  peoples  fur- 
nished the  elements  which  fused  a  thousand  years  later.  Hence 
the  story  begins  by  portraying  the  criminal  law  of  imperial  Rome 
and  that  of  the  primitive  Germanic  tribes.  At  the  beginning  of 
our  era  the  two  lay  totally  apart,  an  older  and  a  younger  system, 
one  in  the  South  and  one  in  the  North.  The  migrations  of  the 
Germanic  tribes  lead  up  to  their  acceptance  of  Christianity ;  and 
the  influence  of  Christian  religion  and  church  law  form  the  next 
episode  in  the  story,  and  a  chapter  on  this  subject  brings  us  to 
the  period  of  the  early  INIiddle  Ages. 

The  stage  of  the  later  Middle  Ages,  under  the  kingdoms  and 
principalities  of  feudalism  and  of  the  weak  Germanic  imperialism 
claims  next  attention.  Here  a  chapter  describes  the  criminal 
law  in  the  central  Germanic  regions ;  another  chapter  describes 
it  in  Scandinavia,  where  primitive  habits,  uninfluenced  from  out- 
side, persisted  longer;  another  chapter  is  given  to  Switzerland, 
where  mountainous  isolation  served  also  to  preserve  certain 
native  traits,  in  spite  of  the  central  location  near  to  regions  of 
advanced  culture.  Another  chapter  for  the  same  period  is  given 
to  France,  wdiere  the  continuous  Roman  tradition  in  the  South, 
the  Germanic  settlements  in  the  North,  and  the  early  strength  of 
national  monarchy,  served  to  make  a  complex  growth  having 
special  features. 

This  completes  the  second  period,  the  Middle  Ages,  and  brings 
us  to  the  third  period,  the  Renascence  of  Roman  law  in  the 
1400s-1500s,  the  Reformation,  and  the  ensuing  century  of  the 
"Enlightenment."  —  In  Germany,  the  Roman  law  was  adopted 
from  Italy  in  a  peculiar  artificial  fashion.  Italy  had  then  for  nearly 
three  centuries  been  reviving,  popularizing,  and  adapting  the 
classical  Roman  law ;  and  Italy  became  now  the  teacher  of  West- 
ern Europe  (except  England)  for  a  recast  Roman  criminal  law 
and  procedure.^  Three  chai)ters  describe  the  progress  of  the  crim- 
inal law  in  Germany  under  the  scientific  Reception  (the  1500  s), 
the  religious  Reformation  (the  IGOO  s),  and  the  intellectual  Enlight- 
enment (the  1700  s). 

We  then  turn  aside,  for  two  chapters,  to  survey  the  corre- 
sponding development  for  the  same  period  in  Scandinavia,  Swit- 
zerland, Netherlands,  and  France.     Scandinavia,  still  outside  the 

•  Italy's  history  of  criiniiial  law  is  fully  told  in  Professor  Calisse's  vol- 
ume (translated  by  Mr.  Lide),  No.  VIII  of  the  present  Series,  "History 
of  Italian  Law,  Public,  Criminal,  and  Private." 

xxxix 


EDITORIAL    PREFACE 

direct  current  of  new  science,  exhibits  the  almost  pure  develop- 
ment of  Germanic  ideas.  Switzerland  and  Netherlands,  fully 
within  the  influence,  present  only  locally  variant  tj'pes  of  its  effect. 
The  later  religious  and  intellectual  movements  are  shared  in  all 
four  regions,  in  differing  degrees.  France  has  a  special  develop- 
ment of  its  own,  partly  through  its  earlier  cultivation  of  the  re- 
vived Roman  law,  partly  because  of  its  well-formulated  bodies  of 
local  written  law,  but  chiefly  through  its  centralized  monarchy 
and  its  advanced  methods  of  procedure.  Later,  France  leads 
Europe  in  the  humanization  of  the  criminal  law.  — 

This  brings  us  to  the  fourth  period,  that  of  the  French  Revolu- 
tion, which  amidst  the  crash  of  governments  rapidly  focussed  the 
reformative  demands  in  criminal  law  and  started  its  uniA-ersal 
regeneration.  Two  chapters  here  describe  the  influences  of  the 
Revolution  in  its  own  country  and  in  Germany. 

The  fifth  and  last  period,  that  of  ^Modern  Criminal  Law  in 
the  1800  s,  is  thus  ushered  in.  It  is  a  period  of  determined  and 
incessant  efforts  to  reform  the  criminal  law  radically  while  re- 
writing it  in  codes.  But  the  constant  contemporary  advance  of 
science,  political  principle,  and  sympathetic  thought  has  been  so 
rapid,  and  the  rooted  mass  of  worn-out  older  principles  has  been 
so  great,  that  no  one  advance  in  legislation  has  long  sufficed  to 
meet  the  demands.  And  so  the  history  of  the  century  has  been, 
on  its  surface,  little  more  than  a  catalogue  of  these  successive 
legislative  eftorts. 

Here  the  four  chapters  devoted  to  the  codifications  of  this  period, 
and  ending  Part  I,  prepare  us  for  Part  II,  the  history  of  the  theories 
of  criminal  law.  As  a  part  of  this  vast  activity  in  legislation, 
law-makers  have  been  led  to  reconsider  basic  theories  of  criminal 
law.  To  study  its  progress  on  the  subjective  side  we  there- 
fore retrace  our  steps,  and  examine  the  dominating  theories,  in 
their  development  since  men  began  to  reflect  on  the  purpose  of 
law.  Through  Greece  and  Rome,  the  Christians,  the  medieval 
philosophers,  the  religious  and  the  intellectual  reformers,  we 
reach  at  last  the  scientific  era  of  the  nineteenth  century ;  and  the 
history  of  theories  merges  into  the  current  disputations  of  our 
own  times. ^ 

'  For  a  more  elaborate  account  of  current  scientific  theory  in  criminal 
law  since  the  middle  of  the  1800  s,  the  reader  mav  be  referred  t"o  C.  Bernaldo 
De  Quiros'  "Modern  Theories  of  Criminality'"'  (Vol.  I  of  the  Modern 
Criminal  Science  Series). 

Xl 


EDITORIAL  NOTE 

Pursuant  to  the  plan  of  the  Editorial  Committee  to  introduce  each  Volume 
of  this  Series  with  a  word  from  both  a  British  scholar  and  an  American  scholar, 
the  Committee  preferred  a  request,  four  years  ago,  to  Luke  Owex  Pike,  Esq., 
barrister  of  Lincoln's  Inn,  and  assistant  Keeper  of  the  Public  Records.  The 
request  was  cordially  granted.  Mr.  Pike's  notable  work,  "The  History  of 
Crime  in  England,"  distinguished  him  as  the  natural  speaker  for  the  purpose. 
His  sound  scholarship  in  his  edition  of  the  Yearbooks  of  Edward  HI  and  in 
his  "History  of  the  House  of  Lords"  placed  him  among  the  most  eminent 
of  England's  historians. 

In  later  correspondence,  since  the  outbreak  of  the  War,  Mr.  Pike  indicated 
his  intention  (assented  to  by  the  Editor)  "to  wTite,  as  it  were,  a  new  chapter 
of  the  history  of  criminal  law  on  the  Continent,  in  accordance  with  the  object- 
lessons  which  the  Continent  is  now  providing."  This  intended  chapter, 
however,  has  been  lost  to  the  world.  In  October,  1915,  the  preliminary 
proofs  of  this  book  were  forwarded  to  Mr.  Pike ;  but  before  the  end  of  that 
month  he  had  passed  away ;  and  no  manuscript  draft  of  an  Introduction  could 
be  found  among  his  papers,  other  than  some  unfinished  notes  made  in  prepa- 
ration. Instructions  had  been  left  by  him  to  destroy  all  papers  "except  those 
relating  to  the  Continental  Legal  History  Series  published  under  the  auspices 
of  the  Association  of  American  Law  Schools."  Evidently  the  fulfilment  of  his 
plan  had  been  postponed  until  the  expected  arrival  of  the  proofs ;  which  came 
at  last,  but  too  late. 

The  editorial  plan  for  an  Introduction  on  behalf  of  British  legal  science  has 
nevertheless  been  enabled  to  be  fulfilled,  by  the  courtesy  of  Mr.  Justice 
William  Renwick  Riddell,  of  the  Supreme  Court  of  Ontario.  His  dis- 
tinguished name  and  his  charming  personality  are  familiar  to  the  Bar  of  the 
United  States ;  and  his  scholarship  is  attested  in  a  long  list  of  essays,  indicating 
the  natural  zest  of  the  historian  to  be  uniquely  compatible  with  the  wisdom 
and  practical  activities  of  the  judge.  His  goodwill  to  the  cause  represented  by 
the  present  Series  had  already  been  shown  by  his  Introduction  to  \'olume  V 
("History  of  Continental  Criminal  Procedure"),  and  tliis  emboldened  the 
Editor  to  solicit  the  renewal  of  the  favor. 

J.  H.  W. 
February,  1916. 


xli 


INTRODUCTION 
By  William  Renwick  Riddell^ 

This  work  is  of  extreme  value  to  those  who  desire  a  scientific 
and  philosophical  knowledge  of  the  principles  underlying  the 
criminal  law,  punislmient  for  crime,  commutation  and  pardon  ; 
and  sidelights  are  cast  by  it  upon  criminal  procedure.  Its  chief 
value  therefore  will  be  to  the  legislator  and  to  him  who 
wishes  to  influence  the  legislator,  to  the  Executive  and  those 
concerned  in  the  execution  of  the  judgment  of  the  Courts.  The 
difficulties  experienced  in  other  times  and  other  countries,  and 
the  manner  in  which  the\'  have  been  met  and  in  part  o\ercome, 
are  object  lessons  wliicli  the  statesman  and  the  reformer  cannot 
afford  to  neglect. 

We  English-speaking  peoples  may  not  segregate  ourselves  from 
the  rest  of  humanity  —  we  have  our  own  conceit  in  the  superiority 
of  our  own  "culture"^  which  we  treasure  in  proud  and  for  the 
most  part  harmless  self-satisfaction.  But  if  and  when  that  self- 
complacency  goes  so  far  as  to  make  us  wholly  regardless  of  what 
other  peoples  are  and  do,  it  ceases  to  be  harmless  —  the  harm 
being  infinitely  greater  to  ourselves  than  to  the  "foreigner." 

One  of  the  lessons  here  taught  —  indirectly  indeed  —  is  the  essen- 
tial and  fundamental  unity  of  mankind  ;  "there  is  a  great  deal  of 
human  nature  in  man."  With  tJie  Greek  the  blood  of  a  man  who 
had  been  slain  cried  aloud  for  vengeance,  just  as  the  Hebrew 
record  represents  Yahweh  as  saying  to  the  first  murderer,  "The 
voice  of  thy  brother's  blood  crieth  unto  me  from  out  the  ground  "  : 
the  Roman  said  "Natura  partes  habet  duas,  tuitionem  sui  et 
ulciscendi  jus",  and  Breathitt  County  lives  up  to  its  natural 
rights  so  declared. 

1  LL.D.,  F.  R.  Historical  Society,  etc.,  Justice  of  the  Supreme  Court  of 
Ontario. 

-  StKi  an  article  by  Dr.  John  II.  Wigmore  on  "The  International 
Assimilation  of  Law,"  10  Illinois  Law  Review  at  p.  387  (January,  I!)10). 

xliii 


INTRODUCTION 

The  Jew  was  ordered  to  stone  to  death  all  of  his  clan  who  sought 
after  strange  gods;  and  while  in  the  Roman  system  there  was  in 
theory  no  regard  to  religious  opinions,  a  way  was  found  to  deal 
with  the  Christians,  "a  pestilent  and  pernicious  sect"  who  were 
chiefly  characterized  by  minding  their  own  business  and  securing 
their  eternal  welfare.  The  Church  possessed  means  of  punishing 
heretics  in  the  Middle  Ages  and  before  and  after ;  and  the  IMor- 
mons  in  our  Canadian  West  are  secure  from  persecution  only  be- 
cause certain  of  their  theological  antagonists  have  not  the  poAver 
as  they  have  the  desire. 

"Eppur  si  muove!"  The  conception  of  what  constitutes 
crime  changes  from  generation  to  generation.  The  Chorus  in 
Euripides'  "Bacchse"  who 

''dod^(ovaa) 
Bpo/jiia)  TTOvov  rjSvv  Kafiarov  r   eu — 
KOLfXaTOV,  ^(XK')(^LOV  €ua^ofX€ua  (vv.  65-67), 

sings 

CO  fiaKap,  oarc^  evSaifJLCop 

reXera^  9eoiv  elScb^ 

ßiorav  dyiarevet 

Kol  dtaaeverac  -^Irv^äv 

ev  opeaaL  ßa'^yevtjiv 

öaioL^  KaOapp-olaiv 

Tci  re  fiarpo'i  /xeydXas  6p- 

•yia  KuySeXa?  defiirevcov  (vv.  72—79), 

undoubtedly  expressed  the  opinion  of  the  poet  and  of  his  hearers.^ 
But  sacred  as  were  the  Bacchantes  and  their  orgies  to  the  Greek, 
the  Roman  took  a  different  view  of  them.  The  Senate  thought 
"  ut  omnia  Bacchanalia  Romse  primum,  deinde  per  totam  Italiam, 
diruerent",  and  decreed  "Ne  qua  Bacchanalia  Romae  neve  in 
Italia  essent"  (Livy,  xxxix,  18).  This  was  no  "brutmn  fulmen"; 
hundreds  were  executed  in  public  or  in  private,  more  were  im- 
prisoned or  banished.  Xor  do  I  find  that  the  Bacchanalia  of 
Rome  were  worse  —  they  could  not  be  worse  —  than  the  orgy  of 
Agaue,  when  she  slew  and  dismembered  her  son. 

1  I  quote  Beekttith's  edition  of  Weeklein's  version  (Boston,  Ginn  &  Co., 
1886)  —  "öodfovo-o"  substituted  for  Ood^w  for  grammatical  reasons.  The 
Chorus  speeding  on  her  glad  toil,  her  happy  task,  raising  the  Bacchic 
shout,  cries  "O  happy  he  who  to  his  blessedness,  knowing  well  the  divine 
mysteries,  sanctifies  his  life,  and  is  in  soul  initiated  into  rhe  orgiastic  band 
with  holy  ceremonies  solemnh'^  performing  Bacchic  rites  in  the  mountains 
—  and  celebrating  the  prescribed  orgies  of  the  mighty  Cybele." 

xliv 


INTRODUCTION 

The  Flagellantes  of  <a  few  centuries  ago  were  for  a  long  time  as 
holy  as  the  Howling  or  the  \Yhirling  Dervishes ;  but  this  generation 
could  not  stand  the  Holy  Rollers. 

In  the  ninth  century  b.c.,  a  certain  highly-revered  person,  when 
he  was  guyed  by  a  lot  of  half-grown  lads,  turned  and  cursed  them, 
just  as  the  town-drunkard  would  to-day ;  and  it  was  accounted  to 
him  for  glory  that  thereupon  two  she-bears  came  out  of  the  wood 
and  tore  the  youngsters.  To-day,  the  prophet  would  find  himself 
in  the  Police  Court  for  cursing,  and  he  would  be  sent  to  the  Peni- 
tentiary by  any  people  who  believed  in  the  efficacy  of  prayer. 

In  some  cases  it  may  be  that  the  change  is  not  wholly  for  the 
better ;  while  no  one  unless  he  were  unusually  bloodthirsty  would 
wish  the  death  penalty  restored  for  inventing  and  spreading 
satires,  scurrilous  stories  and  satirical  songs  of  a  political 
nature,  as  the  XII  Tables  prescribed,  something  better  is  much 
to  be  desired  than  the  civil  suit  to  which  an  ex-President  of  the 
United  States  was  driven  to  defend  his  reputation.  Perhaps  the 
recent  attempt  in  Pennsylvania  to  deal  with  the  matter  had  some 
merits,  but  it  fell  before  the  ridicule  of  the  untouched.  The  fact 
is  that  we  have  lost  the  ]\Iiddle  Ages  sense  of  the  importance  of 
the  word,  spoken  or  written  :  and  now  no  one  would  think  of 
nailing  a  reviler  of  the  City  authorities  to  a  post  by  the  tongue 
until  he  cut  himself  loose. 

So,  too,  in  the  matter  of  punishment,  death  was  for  long  the 
only  effective  deterrent ;  if  we  except  what  was  almost  an  equiva- 
lent, banislmient.  When  mankind  was  composed  of  septs,  clans, 
tribes,  which  looked  on  each  other  with  hatred  and  dread,  which 
had  no  intercourse  with  each  other,  to  be  driven  from  one's  own 
w^as  almost  as  terrible  as  death.  Cain,  made  a  fugitive,  cried, 
"My  punishment  is  greater  than  I  can  bear"  ;  and  many  felt  the 
like  when  driven  like  the  scape-goat  into  the  wilderness.  The 
theory  grew  up  that  the  soil  of  the  fatherland  stained  by  the 
blood  of  the  slain  could  not  bear  the  presence  of  the  re<l  slayer ; 
and  Theoclimienos  avhpa  KaraKra'^  e/j-cfivXov,  the  crazed  Orestes 
and  the  thrice  unhajjp^'  Adrastos  must  forth  e«  irarpiho';,  at  least 
till  they  receive  absolution  and  purification.  But  the  thought 
was  never  far  absent,  "You  have  taken  life,  be  therefore  depriveil 
of  all  that  makes  life  worth  living." 

That  conception  of  the  necessity  of  living  with  one's  own  has 
long  passed  away ;  and  none  can  convince  the  throngs  of  immi- 
grants to  this  continent  that  banishment  is  a  real  punishment. 

xlv 


INTRODUCTION 

Even  the  sentence  of  transportation  lost  its  terrors  for  the  "Sym- 
pathizers" of  18.37-8,  who  were  transported  to  Van  Diemen's 
Land,  and  the  Fenian  invaders  of  18G6  were  sent  to  the  Peniten- 
tiary. 

Imprisonment  could  not  be,  when  there  were  no  prisons;  but 
prisons  would  have  been  built  if  imprisonment  had  been  a  real 
punishment.  Until  comparatively  recent  times,  the  richest 
and  most  powerful  lived  of  choice  and  of  necessity  in  buildings 
not  far  removed  from  a  gaol,  with  thick  stone  walls,  small  win- 
dows, execrable  sanitary  arrangements,  without  provision  for  what 
we  now  consider  ordinary  decency.  As  between  Sing  Sing  Prison 
and  Carnarvon  Castle,  give  me  the  Prison.  Only  those  who,  like 
Robin  Hood,  lived  under  the  green-wood  tree  felt  it  a  deprivation 
to  be  shut  up  —  the  sequestration  from  the  rest  of  the  world 
bringing  with  it  the  incidental  but  invaluable  advantage  of  se- 
curity from  enemies. 

When  man  could  walk  about  reasonably  safe  from  danger  of 
sudden  assault,  imprisonment  became  something  to  be  dreaded 
and  the  gaol  a  means  of  punishment,  so  that  now  there  is  bitter 
complaint  if  "prison  forte"  if  not  "dure"  be  awarded  even  to 
keep  an  accused  safe  till  his  trial. 

We  may  perhaps  have  become  too  uniform  in  our  manner  of 
punishing  different  forms  of  offense  against  the  law.  Bentham 
was  not  oblivious  to  the  value  of  making  the  punislunent  fit  the 
crime ;  but  he  would  not  have  gone  so  far  as  to  extract  the  intes- 
tines from  one  who  wrongfully  girdled  his  neighbour's  trees,  and 
wind  them  about  the  trees  in  lieu  of  the  abstracted  bark;  nor 
would  he  give  the  shameless,  the  choice  between  a  heavy  fine  and 
running  naked  through  the  town.  In  Canada,  the  authorities  a 
few  years  ago  had  to  interfere  with  the  Doukhobors,  who  per- 
sisted in  marching  "in  puris  naturalibus " ;  and  any  one  who 
should  attempt  anything  of  the  kind  am-^vhere  in  civilization 
would  soon  be  laid  by  the  heels. 

It  is  interesting  to  find  in  these  pages  the  origin  of  much  "fire- 
side law",  which  is  often  but  a  survival  in  popular  belief  of  what 
was  once  a  legal  fact.  For  example,  it  is  a  matter  of  implicit  belief 
amongst  the  lower  classes  in  Britain  that  if  the  rope  used  in  hang- 
ing a  criminal  should  break,  he  would  go  free.  That  this  was  the 
case  in  early  German  law  is  certain  and  almost  certain  that  it 
was  the  case  at  least  locally  in  England  —  the  breaking  of  the 
rope  being  a  token  of  Divine  forgiveness. 

xlvi 


INTRODUCTION" 

All  such  matters  and  many  more  of  like  nature  are  touched 
upon  ;  most  are  exhaustively  treatefl  in  this  interesting  and  valu- 
able work.  More  valuable  and  interesting  to  many  Avill  be  the 
general  observations  of  the  author  —  I  may  be  permitted  to  men- 
tion one  or  two. 

In  drawing  the  distinction  between  the  Roman  and  the  Germanic 
conception  of  the  relation  of  the  individual  to  the  State,  it  is  said 
that  according  to  the  Roman  conception  the  indi\'idual  has  no 
rights  which  the  State  is  bound  to  respect,  and  tliat  laws  for  the 
protection  of  the  individual  are  mere  voluntary  concessions  by  the 
State  which  at  its  discretion  may  be  withdrawn,  — while  according 
to  the  early  Germanic  conception,  the  rights  of  tlie  uidi\idual  as 
against  the  State  are  not  based  upon  some  law  liable  to  be  modified 
or  suspended  at  will,  for  personal  rights  follow  tlie  Germanic  indi- 
vidual everywhere,  and  decrees  derogatory  thereof  are  null  and  void. 
This  most  pregnant  observation  will  lead  the  pliilosopliic  student 
and  laAAyer  to  consider  the  far-reaching  results  of  each  principle, 
and  still  more  to  consider  how  far  the  peoples  and  tlieir  descendants 
on  both  sides  of  the  Atlantic  remained  and  remain  true  to  these 
their  ideals. 

The  author's  statement  that  "  it  is  diflBcult  for  a  conquest-seek- 
ing military  system  which  is  naturally  adverse  to  being  governed 
by  laws,  to  preserve  free  institutions"  is  much  more  tlian  a  mere 
truism. 

I  conclude  by  bearing  tribute  to  the  author's  recognition  of 
the  wrong  of  punishing  the  innocent  in  order  to  inspire  others  with 
terror ;  and  to  the  value  of  his  discussion  of  the  uselessness  (and 
worse)  of  cruelty  in  dealing  with  the  transgressor  real  or  supposed. 

OsGOODE  Hall,  Toronto, 

March  1st,  1916. 


xlvii 


INTRODUCTION 
By  Edwin  Roulette  Keedy^ 

A  RECENT  writer  epigrammatically  defined  law  as  "the  point 
where  Hfe  and  logic  meet."  If  this  definition  were  substantially 
correct,  legal  history  would  be  neither  very  interesting  nor  signifi- 
cant. It  is  the  lack  of  logic  in  the  origin  and  development  of  the 
law  that  provides  the  charm  and  importance  of  this  branch  of 
historical  study. 

The  criminal  law,  by  reason  of  the  nature  of  crime  and  the  re- 
lation of  the  law  to  it,  is  characterized  by  even  less  logic  than  the 
civil  law.  Crime  is  generally  the  failure  to  restrain  an  instinctive 
impulse.  To  satisfy  sexual  desire,  to  injure  one  who  has  angered 
us,  to  take  what  one  wants  even  though  it  belongs  to  another,  — 
all  these  are  natural  impulses.  The  impulse  to  retaliate  is  of  the 
same  character  and  in  this  retaliation,  first  by  the  individual  and 
then  by  the  group,  we  see  the  beginning  of  the  criminal  law.  The 
heedless  character  of  this  impulse  to  retaliate  is  shown  by  the  fact 
that  the  law  for  a  long  period  wreaked  its  vengeance  against 
animals  and  inanimate  objects  in  the  same  way  that  a  person 
kicks  a  chair  over  which  he  has  stumbled. 

Criminal  law  may,  therefore,  with  a  large  measure  of  truth, 
be  defined  as  the  instincti^'e  reaction  of  the  group  against  the 
instinctive  action  of  the  individual.  This  view  of  the  criminal 
law  is  supported  by  the  large  part  which  the  primitive  emotions 
have  played  in  its  development.  Fear,  avarice,  superstition,  and 
religion  are  emotional  factors  which  have  greatly  influenced  the 
law.  For  instance,  fear  of  revolution  })ro<luced  the  harsh  laws 
against  secret  societies  in  Russia  and  Prussia.  Fear  engendered 
in  England  by  the  French  Revolution  produced  much  of  the 
severity  of  the  criminal  law  at  the  beginning  of  the  nineteenth 
century.     Avarice  and  superstition  combined  to  produce  the  laws 

^  Professor  of  Law  in  the  University  of  Pennsylvania. 

xlix 


INTRODUCTION 

against  witchcraft  and  sorcery,  and  avarice  alone  was  a   strong 
iiuriitive  for  inij)()siiig  monetary  penalties  and  for  confiscating  the      / 
property  of  convicted  felons.     Religion  is  responsible  for  two  kinds  v 
of  laws,  —  those  to  protect  itself,  such  as  the  laws  against  blas- 
phemy and  heresy,  and  those  against  personal  vices. 

Not  only  has  the  development  of  the  law  been  largely  affected 
by  constant  emotional  factors,  but  radical  changes  have  been 
produced  by  the  emotional  reaction  aroused  by  a  particular 
incident.  The  conviction  and  execution  of  Jean  Calas  in  1762, 
coupled  with  the  notoriety  given  this  case  by  Voltaire,  started 
the  movement  for  the  reformation  of  the  criminal  law  throughout 
Europe.  A  notorious  case  of  flogging  gave  the  impetus  to  reform 
in  Switzerland  in  the  last  century.  Though  twenty-five  bills 
providing  for  an  appeal  in  criminal  cases  were  presented  to  the 
British  Parliament  in  the  nineteenth  century  it  required  the  case  of 
Adolf  Beck  to  secure  the  enactment  of  such  a  measure. 

In  the  character  of  its  accomplislunent  the  criminal  law  differs 
materially  from  the  civil.  r'The  civil  law  gives  a  reparation  and 
reproduces  as  far  as  possible  the  status  quo.  Its  accomplishment 
may  be  described  as  salvage.  What  the  criminal  law  accomplishes 
is  waste,  for  in  return  for  one  injury  it  imposes  another,  and 
compensates  the  loss  to  itself  by  creating  a  further  one,  for  most 
punishments  are  after  all  simply  legalized  crimes^  Furthermore, 
there  is  no  logical  connection  between  punisliment  and  crime. 
What  principle  of  logic  can  determine  whether  the  punishment 
for  robbery  shall  be  death,  mutilation,  or  imprisonment?  It  is 
the  temper  of  the  times  that  determines  the  character  and  extent 
of  punishment.  A  noteworthy  feature  of  criminal  law  is  the  great 
variety  of  penalties  provided  at  different  times  for  the  same 
offense.  The  punishment  for  adultery,  for  instance,  has  ranged 
from  a  small  fine  to  death  in  horrible  forms.  It  is  not  to  be 
concluded  from  the  foregoing  that  theory  and  logic  were  entirely 
absent  in  the  development  of  the  criminal  law.  Their  influence, 
however,  was  qualifying  and  explanatory  rather  than  creative. 
They  generally  followed  rather  than  preceded  action. 

A  survey  of  our  criminal  law  to-day  discloses  many  of  the  same 
defects  which  prevailed  in  the  past.  There  is  the  same  lack  of 
definite  theory  as  to  its  function,  and  the  same  haphazard  method 
of  determining  the  character  and  extent  of  punisluiient.  Laws  are 
still  enacted  to  meet  particular  situations  without  regard  to  what 
their  effect  will  be  in  the  future.     What  is  even  more  striking,  our 

1 


INTRODUCTION 

legislatures  enact  statutes  without  considering  the  question  whether 
they  can  or  will  be  enforced.  A  notable  instance  of  this  is  found  in 
the  recent  laws  for  the  sterilization  of  defectives  and  criminals. 
A  popular  theory  was  seized  upon  by  enthusiasts  and  made  the 
basis  for  legislative  proposals,  which  became  law  in  many  States. 
The  theory  is  now  to  a  large  extent  discredited  and  the  laws  are 
not  being  enforced.  ]\Iany  persons  hold  the  view  that  all  tliat 
is  necessary  to  change  a  condition  is  to  enact  a  law  against  it. 
Others  believe  that  law  should  register  a  moral  sentiment  higher 
than  that  actually  existing  in  the  community.  The  result  of  l)oth 
views  is  a  mass  of  unenforceable  legislation.  Imi)ortant  innova- 
tions are  frequently  made  without  sufficient  consideration  being 
given  to  their  relation  to  existing  law  or  to  the  machinery  for  enforc- 
ing them.  Thus  the  work  of  the  recently  established  psychopathic 
laboratories  is  hampered  by  the  fact  that  the  relation  of  their 
findings  to  the  established  principles  of  criminal  law  was  not 
previously  determined.  The  effectiveness  of  parole  and  probation 
laws  is  often  impaired  by  failure  to  provide  for  sufficient  super- 
vision over  the  persons  released  under  them. 

]Much  of  the  inconsistency  and  ineffectiveness  of  our  present 
criminal  law  could  have  been  avoided  if  the  lessons  of  the  past 
had  been  applied,  for  the  history  of  the  criminal  law  has  its  greatest 
significance  for  the  codifier  and  legislator.  They  will  discover 
there  the  illogical  basis  of  many  cherished  doctrines.  They  will 
learn  further  the  necessity  for  determining  the  purpose  of  the 
criminal  law  and  for  viewing  it  as  a  whole.  But  most  important 
of  all  they  will  discover  that  there  are  limits  to  the  effectiveness  of 
the  law,  and  thus  be  brought  to  realize  that  there  arc  conditions 
in  which  a  prohibitory  law  is  a  source  of  more  e\il  than  good. 

There  is  need  to-day  for  a  complete  code  of  criminal  law  —  not 
such  a  codification  of  existing  law  as  we  have  had  in  the  past 
nor  a  body  of  statutory  law  based  on  a  theoretical  principle,  but 
a  code  in  the  preparation  of  which  the  function  of  criminal  law 
is  determined  and  which  is  fitted  to  actual  conditions  of  life. 
In  drafting  such  a  code  the  question  of  enforceability  would  ha\e 
to  be  faced.  This  would  include  among  other  things  a  study 
of  the  extent  to  which  it  is  possible  to  regulate  business  affairs  by 
law  and  would  involve  the  necessity  of  distinguishing  between 
public  wrongs  and  private  vices.  The  difficult  problem  of  respon- 
sibility would  have  to  be  solved  and  a  new  classification  of  crimes 
would  be  required.     It  would  be  necessary  to  study  the  whole 

li 


INTRODUCTION 


question  of  punishment  —  to  determine  its  purpose,  and  to 
establish  some  rehition  between  it  and  crime.  The  mooted  ques- 
tions whether  the  criminal  law  shall  afford  any  redress  to  the 
injured  party,  and  whether  a  person  wronfjly  convicterl  of  crime 
shall  be  compensated  by  the  State,  would  have  to  be  settled. 
In  the  drafting  of  such  a  code  as  has  been  described,  the  present 
volume  would  be  of  great  value. 

UNivERSiTi-  OF  Pennsylvania, 

PmLADELPHIA, 

February  16,  1916. 


1Ü 


AUTHOR'S   PREFACE 

By  carl  LUDWIG   VON   BAR 

It  will  be  readily  admitted  that,  immediately  after  the  publi- 
cation of  a  comprehensive  code  of  general  application,  an  opportune 
occasion  arises  for  a  treatment  of  the  law  in  which  its  interpre- 
tation is  undertaken  in  a  dialectical  method.  Nevertheless,  this 
treatise,  the  first  volume  of  which  I  herewith  submit  to  the  public,' 
is  of  a  different  character,  and  deals  with  the  law  rather  in  a 
historical  method.  If  at  this  time  such  a  treatment  of  the  sub- 
ject is  to  be  justified,  it  is  requisite  that  it  represent  an  endeavor 
to  comprehend  and  portray  the  present  German  Criminal  Code, 
in  all  its  parts  and  subdivisions  as  well  as  in  its  entirety,  as  the 
product  and  result  of  preceding  ages. 

Such  an  endeavor  permits  of  both  a  philosophical  and  a  practical 
treatment  of  the  subject.  The  former  is  necessary,  unless  we  are 
prepared  to  accept  history  as  an  irrational  conglomeration  of 
isolated  facts.  The  latter  is  desirable,  since  the  real  sense  of  a 
statutory  provision  is  more  readily  ascertained  from  a  glance  at 
the  long  course  of  its  previous  development  than  from  the  dia- 
lectical method,  which,  while  easier  and  more  striking,  is  often 
prone  to  lead  to  misconception.  Our  method  also  enables  us  to 
surmise  intelligently  the  future  development  of  the  law.  At 
least,  we  shall  be  in  a  position  to  avoid  the  mistake  of  regarding 
as  new  truths  those  old  errors,  which  persist  in  coming  to  life  in 
modern  disguises  and  confuse  us  in  our  eftorts  to  make  true  and 
permanent  progress.  We  shall  also  be  able  to  distinguish  between 
actual  knowledge  and  that  dilettantism  which  so  often  accom- 
panies movements  of  reform.  This  is  a  wisdom  which  can  hardly 
be  acquired  from  the  latest  periodicals  or  from  an  observation  of 
current  events. 

>  [No  other  volume  was  published.  The  author  planned  a  General 
Handbook,  of  which  the  first  volume  was  to  be  this  history.  —  Ed.] 

liii 


author's  preface 

In  order  to  attain  our  purpose  —  to  obtain  really  practical 
results  —  it  has  seemcfl  necessary  to  precede  the  historical  treat- 
ment of  particular  Ic^al  principles  with  a  general  history  of  Ger- 
man criminal  law.  I  do  not,  however,  mean  a  history  in  the 
sense  that  one  may  expect  to  find  therein  a  compendium  of  all 
the  rules  of  criminal  law  which  have  ever  existed,  but  rather  a 
history  in  which  an  endeavor  is  made  to  present  in  a  manner, 
clear  but  sufficiently  concrete,  the  essential  elements  of  each 
period  treated  in  conjunction  with  the  history  of  general  progress. 
JNIoreover,  not  only  a  history  of  the  law  is  necessary ;  there  must 
be  also  a  historv^  of  the  philosophy  of  criminal  law  —  a  history  of 
the  theories  of  criminal  law.  For  philosophy  is  part  of  history  ;  in 
a  certain  sense  it  is  as  a  mirror,  reflecting  in  general  conclusions 
the  activities  of  the  times  and  their  causes,  and  shedding  light 
upon  the  future.  Philosophy  has  exercised  a  remarkable  influ- 
ence upon  the  field  of  criminal  law,  and  this  will  be  even  more  so 
in  the  future.  Moreover,  such  a  historical  treatment  should  criti- 
cise the  value  of  the  individual  theories,  not  only  according  to 
the  criterion  of  their  abstract  correctness,  but  also  in  the  light  of 
their  relation  to  the  practical  exigencies  of  that  stage  of  progress 
of  which  they  were  a  part. 

The  question  may  certainly  be  raised,  in  view  of  that  investiga- 
tion of  details  which  is  constantly  going  on,  whether  it  is  permis- 
sible for  one  to  announce  an  intention  of  writing  a  general  history 
of  German  criminal  law.  Undoubtedly  in  such  a  history  there 
will  be  numerous  gaps  and  deficiencies.  Yet,  in  our  estimation, 
it  is  desirable  that  there  be  undertaken,  from  time  to  time,  such  a 
general  history  of  a  branch  of  our  law ;  since  otherwise  the  results 
of  the  minute  investigation  of  historical  details  would  upon  the 
W'hole  remain  inaccessible  for  the  solution  of  single  points  of  the 
law,  and  for  the  general  comprehension  of  the  practitioner  and 
those  who  are  influential  in  legislation. 

As  to  the  treatment  of  specific  points  in  such  a  general  history, 
there  will  necessarily  be  dift'erences  of  opinion.  Completeness  is 
impossible,  if  the  leading  and  essential  features  are  not  to  be  lost 
sight  of  in  the  mass  of  several  details.  The  author  must  exercise 
considerable  tact  in  regard  to  those  matters  as  to  which  there  is 
dispute,  and  he  must  bear  up  as  best  he  can,  if  he  is  so  unfortunate 
as  to  displease  many  and  satisfy  only  a  few.  It  can  be  hoped  only 
that  the  author  should  have  knowledge  of  the  individual  details 
in  suflScient  measure,  and  especially  that  he  should  not  merely 

hv 


AUTHOR  S   PREFACE 

rely  upon  works  which  have  been  written  concerning  the  history 
of  his  subject,  but  that  he  should  avail  himself  of  the  best  original 
sources. 

This  last,  and  in  my  opinion  indispensable,  requirement  placed 
a  limitation  upon  my  activity,  —  i.e.  to  deal  only  with  the  history 
of  the  German  criminal  law  and  to  exclude  the  history  of  the  law 
of  other  peoples  whose  progress  is  closely  related,  and  to  exclude 
also  the  history  of  the  Norse  criminal  law.  However,  an  occa- 
sional reference  may  be  made  to  foreign  law  and  foreign  legal 
development.^ 

A  short  history  of  the  Roman  criminal  law  (which  to  a  very 
considerable  extent  was  "received"  by  us)  is  necessary.  Fol- 
lowing established  custom,  I  have  dealt  with  it  from  the  begin- 
ning —  notwithstanding  the  fact  that,  theoretically  speaking, 
a  history  of  the  German  criminal  law  should  begin  with  German 
law,  and  the  "received"  foreign  law  should  constitute  only  an 
incidental  element.  I  have  done  this  for  the  reason  that  the 
"reception"  of  the  Roman  law  —  at  least,  the  indirect  influence 
of  the  same  —  began  at  a  very  early  period,  —  so  early  indeed 
that,  with  the  sources  at  our  command,  a  history  of  pure  German 
law  would  cover  a  period,  the  limits  of  which  could  hardly  be 
established  with  any  degree  of  certainty. 

Everywhere,  as  an  ideal  in  my  work,  I  have  had  before  me  a 
"liebevolle  Hingabe",  and  so  it  will  be  in  the  future.  It  was  not 
my  purpose  to  create,  to  achieve  new  and  brilliant  results.  I 
considered  it  well  worth  the  while  in  this  work  to  take  the  results 
achieved  by  others,  and,  in  a  general,  accessible  treatise  which 
should  not  appear  so  learned  and  abstract  as  to  be  deterrent,  to 
make  them  useful  to  a  wider  circle  of  readers.  Possibly  the 
history  of  criminal  law  will  appeal  to  a  considerable  number  of 
laymen,  and  perhaps  also  to  many  of  the  profession.  However 
this  does  not  preclude  me  from  occasionally  arriving  at  a  new 
conception. 

I  have  always  been  of  the  opinion  that  those  new  ideas  which 
are  permanent  in  the  theory  of  law  are  only  developments  of  that 
which  has  gone  before,  and  not  absolutely  new  and  startling.  It  is 
from  this  point  of  view  that  I  regard  my  own  conception  of  the 
fundamental  principle  of  criminal  law.     Perhaps  it  contains  only 

1  In  the  history  of  the  theories  of  eriminal  law,  attention  is  driven 
only  to  those  foreign  writers  who  can  be  shown  to  have  had  an  actual 
influence  upon  the  German  literature. 

Iv 


AUTHOR  S    PREFACE 

that  which  seems  of  permanent  vahie  in  the  earlier  theories,  and 
regarded  in  this  way  it  is  not  original.  But  originality  can  not 
well  exist  in  a  work  whose  purpose  it  is  to  collect  divergent  mate- 
rials, and  in  which  the  individual  feels  that  his  share  in  the  great 
sum  total  of  scientific  development  is  exceedingly  small.  Such 
is  the  character  of  this  work;  and,  in  accordance  with  my  pur- 
pose as  before  stated,  an  attempt  is  made  merely  to  recognize  as 
far  as  possible  the  relative  truth,  the  permanent  elements  in  the 
divergent  views. 

This  standpoint  of  relative  correctness  {i.e.  of  all  theories)  may 
be  announced  as  the  ideal  of  this  entire  work,  in  which  the  author 
gladly  recognizes  the  special  merits  of  other  comprehensive  works 
upon  the  subject  of  criminal  law,  and  especially  the  "Handbuch" 
of  Holtzendorff,  consisting  of  individual  contributions,  and  also 
Halschner's  new  "System."  The  existing  treatises  by  Berner, 
Schütze,  Hugo  ]Meyer,  and  Von  Liszt  are  directed  towards  other 
purposes,  and  consequently  do  not  render  superfluous  the  work 
here  undertaken. 


ivi 


PART    I 
GENERAL   HISTORY   OF    CRIMINAL   LAW 


TITLE   I.     THE   ROxMAN   AND   GERMANIC 
ELEMENTS 


CHAPTER     I.     THE   ROMAN   LAW. 
CHAPTER   II.     PRIMITIVE   GERMANIC   LAW. 


HISTORY  OF  CONTINENTAL 
CRIMINAL  LAW 


Chapter   I 


THE  ROMAN  LAW 


§1. 
§2. 

§3. 

§4. 
§5. 


§6. 


§7. 


§9. 


Various  Origins  of  Criminal 
Law.  Vengeance.  In- 
fluence of  the  Priesthood. 

Rome.  Prominence  of  Re- 
ligious Element.  Roman 
Law  not  a  Theocratic 
System.  Early  Suppres- 
sion of  Vengeance. 

Suppression  of  Vengeance 
in  Cases  of  Homicide. 
Influence  of  the  Principle 
of  Vengeance  in  the  Treat- 
ment of   Other   Crimes. 

"Perduellio."  "Multae 

Irrogatio." 

Roman  Conception  of  the 
Relation  of  the  Individual 
to  the  State.  Germanic 
Conception  of  the  Rela- 
tion of  the  Individual  to 
the  State.  ContriI)Ution 
of  Roman  Criminal  Law 
to  the  p]stal)lishment  of 
Individual  Rights. 

The  Judicial  Law  of  the 
Empire.  Real  Explana- 
tion of  Arl)itrary  Char- 
acter of  Roman  Criminal 
Law. 

Tlie     Law 
TaV)les. 

Power  of  "Paterfamilias"  as 
Supplement  to  Criminal 
Law.  The  Censorship. 
Infamy.  "Actiones 

Populäres." 

Other  Criminal  Legislation 
of  the  Republic.  Statutes 
of  Later  Republic. 


of     tlio     Twehe 


§  10.  Punishment  in  Statutes  of 
Later  Republic.  Opposi- 
tion  to   Death   Penalty. 

§11.  Gradual  Change  in  Char- 
acter of  the  Criminal  Law. 

§  12.  Cliange  in  the  Character  of 
Exile  as  a  Punishment. 
Increased  Use  of  Capital 
Punishment.  Corporal 

Punishment.  Imprison- 
ment. Hard  Labor. 
Other  Methods  of  Pun- 
ishment. 

§  13.  Infamy  and  Confiscation  of 
Property. 

§  14.     The  Range  of  Criminal  Law. 

§  15.  The  Crime  of  "Lese  Ma- 
jeste." 

§  10.  Persecution  of  the  Chris- 
tians. 

§  17.     Sorcery  and  Soothsa.ving. 

§  18.  General  Circumstances  Af- 
fecting Imperial  Criminal 
Law.      (1)  Class  l*ri\'ilege. 

(2)  Administration  of  Jus- 
tice    by     State     Officials. 

(3)  Continued  Disregard 
for  the  Criminal.  (4j  Re- 
version to  more  Primitive 
Conditions. 

§  19.      Inilueiice   of   the  Jurists. 

§  20.  Influence  of  Christianity  in 
the  Later  Empire.  Pro- 
tection of  State  Sought  by 
Numerous  Penal  Statutes. 
Otiier  Effects  of  tiie  In- 
fluence of  the  Church. 
Last  Stages  of  the  Roman 
Criminal  Law. 


§  11  ROiMAN   AND   GERMANIC   ELEMENTS  [Paut  T,  Title  I 

§  1.  Various  Sources  of  Criminal  Law.  Vengeance.' — The 
existence  of  two  modern  doctrines,  concerning  the  nature  of  crimi- 
nal hiw,  —  one  of  which  regards  punishment  as  a  necessary 
consequence  of  crime,  and  the  other  would  justify  punishment  as 

1  In  regard  to  the  matter  contained  in  this  chapter,  the  following 
Avriters  may  be  consulted.  Invernizzi,  "De  publieis  et  criminalibus 
judiciis  Romanorum"  (1787.  Leipzig  edition,  1846);  Welcher,  "Die 
letzten  Gründe  von  Recht,  Staat  und  Strafe"  (1813),  pp.  535  et  seq.; 
Ahegg,  "De  antiquissimo  Romanorum  jure  criminali"  (1823);  Jnrcke, 
"Versuch  einer  Darstellung  des  censorischen  Strafrechts"  (1824)  ;  Köstlin, 
"Die  Lehre  von  Mord  und  Todtsclilag "  (Part  1,  1838,  "Das  altrömische 
Parricidium") ;  Osenbrüggen,  "Das  altrömische  Parricidium"  (1840); 
"Geschichte  des  römischen  Criminalproeesses "  (1842);  Plattier,  "Quaes- 
tiones  de  jure  criminum  Romano,  pra^sertim  de  eriminibus  extraordi- 
nariis"  (1842);  Rein,  "Das  Criminalrecht  der  Römer  von  Romulus  bis 
auf  Justinian"  (1844);  Laboulaye,  "Essai  sur  les  lois  criminelles  des 
Romains  concernant  la  responsabilite  des  magistrats"  (Paris,  1845); 
Du  Boys,  "Histoire  du  droit  criminel  des  peuples  anciens"  (Paris,  1845), 
pp.  237  et  seq.;  Walter,  "Geschichte  des  römischen  Rechts"  (2  vols., 
3d  ed.,  1860);  Rudorff,  "Römische  Rechtsgeschichte"  (2  vols.,  1857, 
1859);  Von  Holtzendorff,  "Die  Deportationsstrafe  im  römischen  Alter- 
thume"  (1859.  Part  of  larger  work  by  same  author  in  regard  to  the 
punishment  of  deportation);  Köstlin,  "Geschichte  des  deutschen  Straf- 
rechts im  Umriss,  herausgegeben  von  Gessler"  (1859),  pp.  1-47;  Geib, 
"Lehrbuch  des  deutschen  Strafrechts"  (1861),  Vol.  I,  pp.  7-123  ;  Henriot, 
"Moeurs  juridiques  et  judiciaires  de  l'ancienne  Rome"  (3  vols.,  Paris, 
1863-1865);  Von  Ihering,  "Geist  des  römischen  Rechts"  (citations  to 
3d  edition).  Vol.  I,  pp.  252  et  seq.  ;  Von  Holtzendorff,  "Handbuch  des 
deutschen  Strafrechts"  (I,  1871),  pp.  16-39;  Mommsen,  "Römische 
Geschichte";  Monunsen,  "Römisches  Staatsrecht"  (2  vols.,  citations  to 
2d  edition,  1876,  1877);  Von  Wächter,  "Beilagen  zu  Vorlesungen  über 
das  deutsche  Strafrecht"  (1,  1877),  pp.  56-77;  A.  Pernice,  "Antistius 
Labeo,  das  röm.  Privatrecht  im  1.  Jahrhundert  der  Kaiserzeit"  (II, 
1878);  Padeletti,  "Lehrbuch  der  römischen  Rechtsgeschichte"  (German 
edition  by  Von  Holtzendorff,  1879);  Zumpft,  "Das  Criminalrecht  der 
römischen  Republik"  (2  vols,  in  four  divisions,  1865  and  later,  deals 
essentially  with  procedure).  Compare  also:  Thonissen,  "Etudes  sur 
I'histoire  de  droit  eriminel  des  peuples  anciens"  (2  vols.,  Paris,  1869), 
and  Thonissen,  "Le  droit  penal  de  la  republique  Athenienne  precede 
d'un  etude  sur  le  droit  criminel  de  la  Grece  legendaire"  (Bruxelles  and 
Paris,  1875). 

[For  more  recent  literature,  see:  Accarias,  "Precis  de  droit  romain" 
(Paris,  1886-1892);  Cornil,  "Droit  romain"  (BruxeUes,  1885);  Ferrini, 
"Diritto  penale  romano"  (Milano,  1898);  Brunnenmeister,  "Die  Tödt- 
ungsverbrechen  im  altrömischen  Recht"  (Leipzig,  1887);  Monunsen, 
"Römisches  Strafrecht"  (Berlin,  1888,  1899) ;  Zaumar  de  la  Carrera,  "De- 
recho  Romano"  (Barcelona,  1883);  May,  "Elements  de  droit  romain" 
(Paris,  1891) ;  Rada  y  Delgado,  "Elementos  de  derecho  romano"  (Madrid, 
1887);  Ronga,  " Instituzioni  di  diritto  romano"  (Torino,  1889-1890); 
Monunsen  (with  Brunner,  Goldziher,  ct  al.),  "Zum  aeltesten  Strafrecht 
der  Kulturvölker;  Fragen  zur  Rechtsvergleichung "  (1905);  v.  Ihering, 
"  Das  Schuldmoment  im  römischen  Recht "  (in  his  "Vermischte  Schriften  ", 
1879)  ;  Hepp,  "Die  Zurechnung  auf  dem  Gebiete  des  Civilrechts"  (1838)  ; 
Strachan- Davidson,  "Problems  of  Roman  Civil  Law"  (2  vols.,  1912); 
Ferrini,  "Diritto  penale  romano"  (Milano,  1899).  —  Vox  Thot.] 

[Both  in  the  text  and  in  the  notes  the  German  method  of  referring 
to  the  Corpus  Juris  has  been  followed.  An  explanation  of  this  method 
of  quotation  can  be  found,  e.g.,  in  Sohm's  "Institutes  of  Roman  Law" 
(English  translation  by  Ledlie,  p.  17).  —  Transl.] 

4 


Chapter  I]  THE  ROMAN   LAW  [§  1 

a  means  of  attaining  a  future  end,  —  bears  a  certain  analogy  to  the 
origin  of  criminal  law,  which  may  itself  be  traced  to  two  sources. 
One  of  these  sources  is  the  principle  of  vengeance  as  a  retaliation 
for  a  wrong.^  The  other  source  lies  in  the  subordination  of  the 
individual  to  some  higher  authority ;  this  authority,  whether  it  l)e 
the  family,  the  clan,  the  community,  or  e\en  the  State,  is  one 
which  strives  to  maintain  a  certain  degree  of  order,  for  purposes 
more  or  less  clearly  defined  and  understood. 

In  the  history  of  different  peoples,  these  two  principles  are 
mingled  and  confused  in  various  combinations.  Vengeance 
exercised  b^'  the  individual  is  not  readily  subject  to  restraint,  and 
tends  to  undermine  the  established  authority,  and  for  this  reason 
the  latter  seeks  to  limit  its  exercise.  But  the  only  way  in  which 
the  established  authority  can  do  this  is,  within  certain  limits, 
to  take  charge  of  the  vengeance  of  the  individual  and  exercise  it 
in  his  behalf ;  for  the  essential  nature  of  the  spirit  of  vengeance 
is  such  that  it  will  not  submit  to  being  arl)itrarily  set  aside.  There 
are  also  times  when  the  established  authority  deems  itself  to  be 
directly  attacked ;  on  these  occasions  it  too  —  like  any  other 
avowed  enemy  seeking  revenge  —  proceeds  against  the  individual 
and  proclaims  him  as  its  foe.  The  execution  of  such  a  criminal 
law,  wherein  the  established  authority  is  directly  concerned,  can 
be  assigned  to  any  in(li^•idual  among  the  people  who  volunteers 
his  service.  The  public  authority  is  as  yet  too  weak  to  proceed 
independently  to  inflict  punishment  through  its  own  agencies ; 
or  perhaps  it  is  obliged  to  consider  the  indignation  of  the  people 
because  of  the  wrongful  act,  and  perceives  that  it  can  make  this 
public  indignation  especially  eft'ective  to  accomplish  its  own  pur- 
poses. In  such  cases,  as  a  matter  of  course,  whosoever  volun- 
teers to  act  as  the  punishing  agent  in  behalf  of  the  community  is 
obliged  upon  demand  to  justify  his  act,  in  like  maimer  as  he  who 
exercises  vengeance  in  his  own  behalf.'' 

2  There  can  be  no  dispute  as  to  the  fact  that  the  principle  of  vengeance 
is  a  root  from  which  the  criminal  law  has  sprung,  —  although  it  is  loss  in 
evidence  in  eases  where  there  has  Ix-en  an  aclvance  in  culture.  Cf.  TlioHix- 
sen,  II,  pp.  GÜ  et  seq.  and  p.  258,  in  regard  to  l)lood  revenge  ("Blutrache") 
among  the  Hebrews.  Among  the  Arabians  there  are  three  cardinal  vir- 
tues :  valor,  hospitality,  and  zeal  for  vengeance.  According  to  the  Greek 
conception,  the  ])lood  of  a  man  who  has  been  slain  cried  out  for  vengeance, 
until  his  relativ(>s  wreaked  vengeance  upon  th«'  slayer.  If  they  failed  to 
act,  there  fell  upon  them  a  severe  curse.  Cf.  Meier  und  Schömaun,  "Der 
attische  Process",  p.  280;  Cicero,  "Topica".  c.  23.  "Natura  partes 
habet  duas,  tuitionem  sui  et  ulciscendi  jus;"  [Köhler,  "Zur  Lehre  von  der 
Blutrache"  (188.')).] 

^  Cf.  especially  as  to  the  relationship  of  the  "coercitio"  and  the  "judi- 


§  1]  ROMAN   AND   GERMANIC    ELEMENTS  [Pakt  I,  Titlk  I 

Influence  of  the  Priesthood.  —  Thus  it  comes  to  pass  that 
vengeance  is  exercised,  not  so  much  as  the  expression  of  an  indi- 
vidual instinct,  but  rather  as  the  servant  of  a  higher  ideal,"*  and 
that  herein  it  often  stands  in  conjunction  with  the  precepts  of 
rehgion.  The  crime  offends  the  gods  —  the  guardians  of  justice 
and  morahty  ;  and  the  punishment  which  destroys  the  wrongdoer, 
purifies  the  sacred  soil  of  the  fatherland,  which  has  been  polluted 
by  the  commission  of  the  crime,^  and  appeases  the  anger  of  the 
gods.  Thus,  punishment  acquires  to  some  extent  a  religious 
significance  and  coloring,  and  comes  under  the  influence  of  the 
priesthood.  It  is  safe  to  assume,  moreover,  that,  if  the  priest- 
hood is  inclined  to  be  lenient  in  its  judgment  of  the  act  that  has 
been  committed,  a  way  will  be  found  by  which  the  anger  of  the 
gods  can  be  appeased  in  some  manner  other  than  the  destruction 
of  the  criminal ;  ^  and  on  the  other  hand,  the  party  seeking  revenge 
finds  moral  support,  and  in  some  cases  real  assistance,  if  the  agents 
of  the  deity  have  proclaimed  the  act  as  one  entailing  the  curse  of 
the  deity.  There  are  also  acts  which  are  in  the  nature  of  direct  at- 
tacks upon  the  sanctity  of  the  gods  —  upon  the  duty  of  allegiance 
owed  to  them.  In  such  cases,  the  priesthood  itself  often  exercises 
vengeance.  Where  the  priesthood  comes  to  be  the  predominating 
influence  in  the  community,  it  is  easy  to  understand  that  such 
dut}'  of  allegiance  to  the  gods  becomes  one  of  first  magnitude,  and 
moreover  that  there  come  to  be  regarded  as  breaches  of  this  duty 
many  acts  which  by  other  peoples  are  considered  merely  viola- 
tions of  natural  or  civil  law  and  not  deserving  punishment  at  all.^ 

eatio"  of  the  Roman  magistrate  and  the  origin  of  the  "judicatio"  in  the 
"eoercitio",  Mommsen,  "Römisches  Staatsrecht",  I,  pp.  133  et  seq., 
153  et  seq.  "The  'judieatur'  is  nothing  other  than  a  regulated  and  re- 
stricted form  of  the  'eoercitio.'" 

^  As  to  the  ideas  of  the  inhabitants  of  India,  cf.  the  "Laws  of  Manu," 
edited  and  translated  by  Thonissen,  I,  pp.  9,  10;  [Köhler,  "Das  Indische 
Strafrecht"  ("  Zeitschr.  für  vergl.  Rechtswissenschaft,"  1903,  XVI,  179.] 
As  to  these  ideas,  among  the  Israelites,  see  the  Bible,  Numbers,  xxxiii 
and  XXXV. 

5  According  to  the  Greek  and  Oriental  conceptions,  the  slayer  must 
at  least  be  driven  from  the  country,  the  soil  of  which  has  been  moistened 
by  the  blood  of  the  slain.  Cf.  Odyssey,  XV,  272:  "otrui  tol  Kai  iydiu  iK 
iraTpl5os,  äudpa  KaraKräs  e/JL(f>v\ov  .    .    ." 

^  As  to  the  cities  of  refuge  ("Asjdstädte")  among  the  Hebrews,  which 
furnished  a  protection  to  the  slayer  against  the  avenger  of  blood  ("Goel"), 
when  the  kiUing  was  not  premeditated,  see  the  Bible,  Exodus,  xxi,  12,  13  ; 
Thonissen,  II,  pp.  264  et  seq. 

''  [Note  by  L.  von  Thot.  —  Since  the  criminal  law  of  Greece  had  much 
in  common  with  the  primitive  criminal  law  of  Rome,  a  brief  description 
of  the  former  will  be  of  interest. 

Modern  accounts  may  be  found  in  the  foUomng  treatises :    Leist, 

6 


Chapter  I]  THE  ROMAN  LAW  [§  2 

§  2.  Rome.  Prominence  of  Religious  Element.  —  In  the  hiy- 
tory  of  Rome,  from  the  most  remote  periods  of  which  we  ha\e 

" Grseco-Italische  Rechtsgesehiehte "  (1884);  Glolz,  "La  Solidarite  de 
la  famille  dans  le  droit  eriminel  en  Greec"  (1904),  and  "L'ordalie  dans 
la  Grece  primitive"  (1904);  Mommaen,  "Zum  aeltesten  Strafreclit" 
(cited  in  Note  1  above;  article  by  Hilzig);  Loening,  "Geschiciite  der 
strafrechtlichen  Zurechnungslehre.  Vol.  1  :  Die  Zurechnungsleiire  des 
Aristoteles"  (1905);  Kraus,  "Die  Zurechnungslehre  des  Aristoteles" 
("Der  Gerichtssaal ",  1904,  LXV,  1.53,  172;  a  critique  of  Loening's 
volume) ;  Tesar,  "  Staatsidee  und  Strafrecht ;  das  griechische  Recht 
...bis  Aristoteles"  (1914);  Abb.  des  krim.  Inst.  Univ.  Berlin,  III  ser., 
I,  3]. 

In  the  Epic  Period,  e.g.  in  Homer,  we  find  traces  of  blood  vengeance. 
However,  as  Leist  says:  "It  is  certain  that  in  tlie  time  of  Homer,  the 
system  of  blood  vengeance  was  not  in  complete  operation.  The  '  Kaai'ivyyoi 
re  fTaire  '  are  those  from  whom  the  slayer  has  to  fear  death.  It  was  a 
sacred  duty  to  punish  the  murder  of  'waTdes'  and  ' Kaffiyv-qroi' ''  (Leiat, 
" Graeeo-italisehe  Rechtsgesehiehte",  Book  II,  Part  III,  §46).  In 
the  Odyssey,  we  read  that  Minerva  praised  Orestes  because  he  had 
slain  ^gisthus,  the  murderer  of  his  fatlier  (Odyssey,  I,  298).  Theo- 
clj^menus  tells  Telemachus  that  he  is  a  fugitive  from  his  fatherland, 
because  of  the  slaying  of  a  fellow  citizen,  and  that  the  man  who  was 
slain  had  many  relatives  and  comrades,  who  have  power  to  kill  him 
(Odj^ssey,  XV,  272-278).  IVIoreover,  Odysseus  says  that  he  who  has 
slain  one  of  his  own  countrymen  who  has  only  a  few  to  avenge  him, 
must,  nevertheless,  leave  his  parents  and  his  fatherland  (Odvssey,  XXI II, 
118-120). 

For  the  period  succeeding  the  Epic  period,  the  laws  of  Draco  may  be 
mentioned.  These  made  a  distinction  between  homicide  '(k  wpovolas', 
and  " fXT)  €K  vpovoias'  (i.e.  homicide  with  and  without  malice  aforethought). 

The  Athenian  state,  in  the  period  of  its  ascendancy,  had  a  special 
and  highly  developed  system  of  criminal  law,  which  has  been  partially 
preserved  in  the  works  of  the  historical  and  philosophical  "\^Titers. 

The  old  criminal  law  of  Attica  contained  the  following  punishments : 
capital  punishment,  imprisonment,  banishment,  public  dishonor  ("in- 
famia"),  money  fines,  and  branding.  Capital  punishment  was  inflicted 
in  the  following  methods.  Criminals  of  the  common  class  were  put  to 
death  by  hanging,  but  slaves  or  those  whose  home  was  without  the  State 
might  be  slain  with  a  heavy  club.  Otiier  methods  were  those  of  burning 
alive,  strangulation,  and  beheading  with  a  sword.  Often  the  condemned 
was  given  a  cup  of  poison  to  drink.  Other  methods  were  suffocation 
and  the  casting  of  the  condemned  from  a  higli  rock.  Stoning,  empale- 
ment  and  crucifixion  wer(>  also  emj)loyed. 

The  Athenian  criminal  law  made  use  also  of  punishments  by  mutila- 
tion —  the  putting  out  of  one  or  both  eyes,  the  cutting  off  of  the  right 
hand,  and  the  tearing  out  of  the  tongue.  Flogging  was  einployed  as  a 
means  of  corporal  punishment.  Imprisonment  was  but  little  used  in 
Athens  as  a  punishment.  It  was  em])l()yed,  however,  when  one  had  not 
paid  a  debt  or  had  been  convicted  of  theft.  In  such  cases  the  condemned 
was  obliged  to  spend  live  days  and  nights  in  jail,  where  he  was  chained 
and  exposed  to  the  derision  and  abuse  of  the  multitude,  linprisonnient 
on  a  ship  was  also  practiced.  Banishment  was  either  for  life  or  tempo- 
rary. One  method  was  that  of  ostracism,  which  was  as  a  rule  limiti'd  to 
cases  of  a  political  significance  or  in  which  the  public  order  was  concerned. 
However,  it  was  seldom  resorted  to. 

We  obtain  many  references  to  i)unislnnent  from  the  '\\Titings  of  various 
authors.  It  was  a  fundamental  principle  that  the  i)unishinent  of  a  slave 
should  be  corporal  [iJonoslluncs,  "Androtion".  GlOj.  Confiscation  of 
property  was  incident  to  ])anishment  {Scliol.  in  Aristophanes,  "Vesp.", 
947).     The  names  of  those  who  were  condemned  to  death  were  erased 

7 


§  2]  ROMAN   AND   GERMANIC    ELEMENTS  [Part  I,  Title  I 

knowledge,  we  find  the  above-mentioned  elements  of  criminal 
law, 

from  the  record  of  citizens  (Dio  Chrysostom,  "Rhodiaca"  31).  If  a 
woman  condemned  to  death  was  enceinte,  the  execution  was  postponed 
(Plulnrch,  "de  sera  num.  vind.",  7).  Those  condemned  to  death  were 
for  three  days  before  the  execution  of  the  sentence  permitted  to  enjoy 
food  and  wine  {Zenobius,  III,  100).  A  man  who  had  been  sentenced  to 
capital  punishment  was  permitted  to  choose  between  the  sword  and  the 
rope  (Suidas).  Where  several  were  sentenced  to  die,  the  various  execu- 
tions took  place  on  consecutive  days,  the  order  being  determined  by  lot 
(Schol.  in  Aristophanes,  "Pac",  364).  There  was,  for  murderers,  no  right 
of  refuge  (asylum)  {Lycurg.  e.  Leverat.  §  93). 

As  to  the  fundamental  principles  of  criminal  law,  the  following  points 
may  be  noticed.  AU  accessories  to  a  crime  were  punished  alike,  whether 
they  be  instigators,  originators,  or  participants.  Where  the  act  was  in- 
tentional the  penalties  fixed  by  law  were  inflicted,  but  where  the  act 
resulted  from  carelessness,  there  was  an  acquittal.  In  crimes  of  a  serious 
character,  there  were  no  periods  of  limitation  in  favor  of  the  criminal. 

Taking  up  the  crimes  specifically,  —  high  treason,  ordinary  treason, 
rebellion  directed  towards  the  overthrow  of  the  democratic  form  of 
constitution,  and  sedition  were  punishable  with  the  death  penalty  and 
confiscation  of  property.  Counterfeiting  and  perjury  were  treated  in 
the  same  way.  Any  one  who,  in  a  temple,  before  a  court,  before  a  magis- 
trate, at  the  public  games,  or  in  an  assembh',  used  offensive  language 
towards  another  was  sentenced  to  pay  a  fine  of  five  drachmas.  Attempts 
against  life  were  punished  wdth  very  severe  penalties.  Incitement  to 
murder  was  also  regarded  as  a  crime  —  the  instigator  being  subjected 
to  the  same  penalty  as  the  actual  perpetrator.  Attempt  at  murder 
was  regarded  in  the  same  light  as  the  consummated  act.  The  penalty 
for  murder  was  death  or  banishment  for  life  and  confiscation  of  property'. 
Murderers  were  deprived  of  aU  public  and  private  rights  and  forbidden 
to  take  part  in  all  religious  ceremonies,  and  if  they  refused  to  leave  the 
country  of  their  own  accord,  were  put  to  death. 

The  elements  essential  to  constitute  the  crime  of  murder  were  inten- 
tion, absence  of  legal  justification  and  the  Athenian  citizensJiip  of  the 
man  who  was  slain.  Assassination  and  poisoning  constituted  a  special 
type  of  murder  and  both  were  punished  with  death.  He  who  killed 
another  tlirough  accident  or  negligence  was  obliged  to  at  once  leave 
the  State,  and  remain  in  foreign  parts  until  permitted  by  the  relatives 
of  the  deceased  to  return.  This  crime  also  entailed  religious  penalties. 
Parricide  was  punished  with  the  death  penalty.  The  junior  Archons 
("  eecTMoö^rat")  might  kill  those  who  were  banished  on  account  of  murder. 
In  fact,  anyone  was  allowed  to  kill  them,  but  the  law  forbade  that  they 
should  be  tortured  or  that  a  composition  be  required  of  them.  If  anj'one 
killed  in  a  sacred  place  a  man  who  had  been  condemned  to  death,  he 
was  made  to  suffer  the  same  punishment  as  was  to  have  been  inflicted 
upon  the  man  whom  he  killed.  He  who  plundered  the  property  of  a 
murderer  who  had  not  been  sentenced  to  lose  his  property,  was  punished 
with  a  money  fine. 

The  law  regarded  self-defense  as  a  justification.  No  punishment  was 
inflicted  upon  a  man  who  slew  another  whom  he  found  in  an  actual  illicit 
relation  ^\-ith  his  wife,  mother,  sister,  daughter,  or  concubine.  The 
right  hand  of  a  man  who  took  his  own  life  was  cut  off  and  buried  apart 
from  the  body.  If  any  one  died  as  a  result  of  a  fault  of  a  physician,  the 
phj'sician  was  not  regarded  as  a  murderer.  Assault  and  battery  of  a 
man,  woman,  or  child  was  punished  by  a  fine  not  exceeding  1000  drachmas. 
In  later  times  this  offense  was  punished  more  severely,  i.e.  with  death. 
Capital  punishment  was  inflicted  upon  the  highwayman  and  upon  one 
who  had  carnal  knowledge  of  a  girl  against  her  will.  If  a  man  seduced 
a  girl,  and  was  himself  unmarried,  he  was  compelled  to  marry  her.     Severe 


Chapter  I]  THE  ROMAN  LAW  [§  2 

The  relijjioiis  element  is  especially  prominent.  Thus  the  word 
"  supplicium ",  meaning  punishment,  and  particularly  capital 
punishment,  is  of  religious  origin.  It  signified,  at  first,  a  sin 
offering  —  a  sacrifice  with  prayers  for  mercy  —  and  is  derived 
from  "  sub  "  and  "  placare  "  (to  appease). ^  Often,  when  a  crime  - 
had  been  committed,  special  sacrifices  were  performed  to  appease 
the  anger  of  the  gods ;  the  criminal  was  declared  to  be  "  sacer  ",  ^ 
and,  as  an  outlaw,  cast  forth  from  the  communion  of  gods  and  men. 
Any  one  who  killed  him  performed  a  task  pleasing  to  the  gods.^ 
"  Leges  sacratie  "  was  the  name  later  given  to  certain  laws,  whic-h 

penalties  were  inflicted  for  depri\ang  a  Greek  citizen  of  his  libertj^  wnthout 
just  cause.  As  other  punishable  acts,  Plato  mentions :  offenses  against 
religion,  batterj-,  the  tearing  down  of  walls,  robbery,  and  theft.  He  who 
had  stolen  an  object  that  was  sacred,  was  punished  by  a  confiscation  of 
all  his  propert}%  and  his  corpse  could  not  be  buried  in  Attica. 

The  criminal  law  of  Sparta  was  of  a  different  nature.  It  was  dis- 
tinguished by  its  extraordinary  severity.  Thus  we  know  that  a  young 
Spartan,  who  had  sewn  a  purple  stripe  on  his  tunic,  was  punished  with 
death  (Plutarch,  "Instit.  Laced.").  We  know  also  that  the  Spartans 
had  stringent  laws  against  refusal  to  enter  into  the  marriage  relation. 
The  young  people  were  punished  with  loss  of  honor  and  property,  and 
were  stripped  of  their  clothing  in  the  market  place  in  the  winter,'  while 
the  people  sang  derisive  songs  {Plularch,  "Lye",  27).  There  is  record 
of  a  judgment  in  the  time  of  Lycurgus,  by  which  a  youth  was  subjected 
to  a  fine,  because  he  had  placed  upon  some  goods  a  selling  price  which 
exceeded  the  real  value,  and  thereby  gave  evidence  of  his  own  avarice. 
A  king  was  compelled  to  pay  a  fine  because  he  had  won  the  hearts  of  all 
the  people,  although  their  admiration  was  justifiable  {Pint.,  "Agesilaos  ", 
6).     These  examples  sufficiently  reveal  the  severity  of  the  Spartan  system. 

A  detailed  examination  would  reveal  many  features  in  the  Spartan 
legislation,  distinguishing  it  from  that  of  the  rest  of  Greece.  Thus  we 
know  that  in  Sparta  theft  was  permissible.  The  vital  matter  was  that 
the  thief  should  not  be  caught.  If  he  was  caught,  he  was  whipped  for 
his  lack  of  sldll.  It  was  not  until  a  comparatively  late  period  tliat  the 
embezzlement  of  pul)lic  funds  was  punished  by  banishment. 

Offenses  against  morality  were  punisiied  in  Sparta  by  death.  Theft 
in  places  that  were  sacred  entailed  the  same  penalty;  as  did  also  bribery 
of  a  priest  or  priestess,  treason,  rebellion,  or  infidelity  in  military  affairs. 
The  usual  method  of  capital  punishment  was  strangulation.  But  the 
Spartan  criminal  law  also  availed  itself  of  decapitation,  casting  from  a 
high  rock,  and  the  cup  of  poison.  Among  other  methods  of  punishment, 
mention  may  be  made  of  deprivation  of  honor  and  civil  rights,  banish- 
ment, and  monej^  fines.] 

'  Rein,  p.  29.  Also  the  words  "castigare"  (i.e.  "castum  agere")  and 
"luere"  (i.e.  "prenam  lucre")  refer  to  purification. 

-  [The  Roman  law  used  various  expressions  to  designate  a  crime,  e.g. 
"fraus",  "scelus",  "maleficium  ",  "flagitium  ",  "peccatum  ",  "di'lictum  ", 
"crimen",  "probum",  etc.  All  these  expressions  are  used  interchange- 
ably. However,  "maleficium"  appears  to  have  been  more  appropriately 
applied  to  a  crime  committed  by  a  slave,  and  "scelus"  to  an  offense 
against  religion:  Ferrini,  "Diritto  penale  Romano",  p.  36.  —  Vox  TiiÖt.) 

'  Deprivation  of  property  as  a  punishment  was  in  ancient  times  called 
"eonsecratio  bonorum." 

*  I  agree  entirely  with  von  Ihcring,  I,  pp.  281,  282,  who  calls  attention 
to  the  analogy  of  the  Norse   "Wargus",   " Waldgäugers."     Mommscn, 

9 


§  2]  ROMAN   AND    GERMANIC    ELEMENTS  [Part  I,  TiTLE  I 

in  an  emphatic  manner  prescribed  the  death  penalty  for  any  one 
who  dared  to  viohite  the  sacred  rights  of  the  Plebs  (which  were 
relatively  the  rights  of  the  individual  citizen),  and  such  a  one  was 
called  "  sacer  "  ("quem  populus  judicavit  ").^  Moreover,  the 
capital  punishments  inflicted  l)y  the  State  were  executed  with 
customs  which  strongly  remind  one  of  the  offering  of  victims  as  a 
sacrifice  to  the  gods.^ 

Roman  Law  not  a  Theocratic  System.  —  However,  the  old 
Roman  criminal  law  did  not,  primarily,  rest  upon  a  theocratic 
foundation.  The  punishment  was  merely  increased  because  of 
the  curse  of  the  gods.  Because  of  their  curse  the  individual  was 
required  to  destroy  the  criminal,  or  at  least  to  break  off  all  rela- 
tionship with  him.'  But  the  determination  of  the  elements 
which  constituted  a  crime  was  little  influenced  by  a  regard  for 
the  gods.  We  find  nothing  corresponding  to  the  death  penalties 
inflicted  in  the  theocratic  community  of  the  Hebrews,^  for  a 
departure  from  the  faith,  nonobservance  of  holidays,  and  blas- 
phemy. The  acts  which  placed  the  accused  in  the  position  of 
"  sacer  "  were  more  essentially  those  pertaining  to  the  interests 
of  the  family  and  of  the  civil  community.^  The  patron  who 
violated  his  duty  of  good  faith  toward  his  client ;  ^^  the  son  who 
wronged  his  father ;  ^^  the  daughter-in-law  who  repudiated  the 
sacred  duty  of  allegiance  to  the  family  —  each  of  these  became 
"  sacer."  An  old  law,  dating  back  to  the  time  of  Xuma,  pro- 
claimed  as   "  sacer "   the  destroyer  of  boundary   marks.^^     By 

"Römische  Geschichte",  (6th  Ed.),  I,  p.  175,  is  incorrect  in  his  statement 
that  such  a  slaying  without  judicial  procedure  is  contrary  to  aU  ci\ic 
systems  of  law. 

^  C/.  Festus,  "De  verb,  significatu"  under  "Sacer  Mons  ",  and  Huschke, 
p.  197,  note;  also  Bible,  Deuteronomy,  xiii,  6-11;  xvii,  2-5.  Those 
who  came  to  have  knowledge  of  the  forbidden  departure  from  the  Jewish 
faith  were  required  forthwith  to  stone  the  guilty,  although  it  is  certainly 
possible  that  there  could  also  be  a  judicial  conviction.  In  Rome,  also,  a. 
denunciation  and  public  execution  of  the  "sacer"  was  possible:  Rein, 
pp.  32,  33. 

^  Mommsen,  "Staatsrecht",  II,  p.  49,  says  that  every  death  penalty 
was  originally,  in  Rome,  the  offering  up  of  a  victim  as  a  sacrifice. 

^  Thonissen,  II,  p.  313. 

»  Plinius,  "Hist,  nat.",  18,  3.     Cf.  Gellius,  11,  18. 

^Plainer,  p.  26,  is  quite  correct  in  the  statement:  "Civitate  potius 
religio  quam  religione  civitas  continebatur." 

'"  Diongsius  H.,  II,  10,  states  that  the  cUent  also  who  ^^olated  his 
duties  was  declared  "sacer." 

^\ Festus,  "Yerh.  Sig.",  under  "plorare"  gives  as  a  statute  of  Servdus 
Tullius :  "Si  parentem  puer  verberit,  äste  oUe  plorassit,  puer  divis  paren- 
tum  sacer  esto." 

^-  Ibid.,  under  "termino,"  "Numam  statuisse  accepimus :  eum  qui 
terminum  exarasset,  et  ipsum  et  boves  sacros  esse." 

10 


Chapter  I]  THE  ROMAN  LAW  [§  3 

the  Twelve  Tables  the  thief  stealing  grain  in  the  night  was  threat- 
ened with  death.  In  like  manner,  by  the  maxim,  "  Suspensumque 
Cereri  necari  jubebant ",  ^^  it  is  evident  that  a  law  affording  so 
effective  a  protection  to  property  was  certainly  not  of  a  religious 
nature."  There  appears  to  be  only  the  intention,  on  one  hand, 
to  arouse  a  special  feeling  of  repulsion  towards  the  crime,  anrl, 
on  the  other,  to  make  the  prosecution  —  probably  rather  lax  in 
the  case  of  many  crimes,  because  e.g.  of  the  existence  of  family 
relations  —  an  especially  vigorous  one,  by  an  appeal  to  religious 
sentiment  and  by  granting  the  right  of  immediate  execution. 
The  only  crimes  which  bore  an  essentially  religious  character  were 
those  acts  which  were  directly  detrimental  to  the  sacred  cults 
of  the  State  ;  and  these  were  few.^''  Apart  from  the  disciplinary 
punishment  against  insubordinate  priests,  the  only  crimes  clearly 
of  this  nature  were  violations  of  the  chastity  of  the  \'estal  \'ir- 
gins ;  these,  for  the  priestess,  entailed  the  penalty  of  being  buried 
alive  ;  ^^  for  her  admirer,  death  l)y  flogging. ^^ 

Early  Suppression  of  Vengeance.  —  It  is  a  peculiar  characteristic 
of  the  Roman  criminal  law,  tliat  private  vengeance  was  suppressed 
at  a  very  early  period.  We  find  it,  in  a  pure  form,  in  none  of  the 
legal  provisions  which  have  survived,  and  from  these  provisions 
we  are  justified  in  drawing  certain  wider  conclusions  as  to  its 
non-existence. 

§  3.  Suppression  of  Vengeance  in  Cases  of  Homicide.  —  Power 
to  deal  with  cases  of  murder  ("  dolose  Tödtung  ")  ^  was  acquired 

1'  As  to  all  these  cases,  cf.  Abegg,  pp.  45  el  seq. 

'*  There  is  nothing  inconsistent  with  the  denial  of  the  theocratic  char- 
acter of  the  early  Roman  criminal  law  in  the  acceptance  of  the  fact  that 
the  priests  exercised  a  consideral)le  influence  upon  the  law  and  especially 
upon  the  criminal  law.  The  Roman  priests  were  State  officials  and  this 
influence  was  a  logical  consequence  of  the  fact  that  originally  the  tem- 
poral and  spiritual  powers  were  in  the  same  hands:  Moinmacn,  "Rom. 
Staatsrecht",  II,  p.  49. 

1^  Fesluti,  "Verb.  Sig."  under  "pelliees"  states:  "Pellex  aram  Junonis 
ne  tangito  ;   si  tanget,  Junoni  crinibus  demissis  agnum  feminam  cajdito." 

1«  In  the  earliest  periods  tlie  Vestal  also  was  flogged  to  death. 

'^  PUitner,  p.  27,  is  of  the  opinion  that  only  slaves  of  the  priesthood 
were  dealt  with  under  this  criminal  power  of  the  priests.  In  that  case 
the  criminal  power  of  the  latter  could  be  regarded  as  purely  a  disciplinary 
one.  It  is  a  fact,  that  there  could  be  an  investigation  by  State  authori- 
ties of  those  who  have  been  absolved,  as  it  were,  by  the  priests. 

•  [There  are  differences  of  opinion  as  to  whether  the  element  in  murder 
spoken  of  as  "dolus"  corresponds  to  malice  aforethought.  According  to 
Leist,  "Griico-l talische  Rtn-htsgeschichte ",  p.  370,  the  conception  of 
"dolus"  combines  legal  conception  of  intention  and  also  of  premeditation. 
Ferrini,  "  Diritto  penal(>  romano",  p.  SO,  on  the  contrary,  asserts  that  the 
Roman  "dolus",  especially  "dolus  malus"  signifies  the  "animus  occi- 
dendi."     In  his  opinion  this  is  evident  from  the  "Lex  Cornelia  ",  in  which 

11 


§  3]  ROMAN   AND    GERMANIC    ELEMENTS  [Part  I,  TiTLE  I 

by  the  public  criminal  authorities  at  an  early  date.  "  Qusestores 
parricidii  ",  -  and  a  sentence  of  death  because  of  a  slayin<>;  done 
intentionally  and  in  the  heat  of  passion,  are  to  be  found  in  the 
well  known  story  of  the  Iloratii.^  There  is  record  of  a  provision 
in  the  laws  of  Nurna  Pompilius,  reading  as  follows :  "  Si  quis 
hominem  liberum  dolo  sciens  morti  duit,  parricida  esto."  ^  By 
these  same  laws,  in  cases  of  homicide  resulting  from  negligence 
("  culpose  Tödtung  "),  vengeance  could  be  avoided  by  the  sacri- 
fice of  a  goat  as  a  sin  offering.  Since  the  State  was  concerned  in 
the  killing  of  one  of  its  citizens,  this  sacrifice  must  be  made  "  in 
concione  ",  i.e.  in  the  public  assembly. 

On  the  other  hand,  it  is  certain  that  the  right  of  the  husband 
or  father  to  take  immediate  vengeance  upon  an  adulterer,  when 
found  "  in  flagrante  ",  long  continued  in  existence.  The  "  Lex 
Julia  de  adulteriis  ",  enacted  in  the  time  of  Augustus,  in  addition 
to  enabling  a  complaint  on  the  grounds  of  adultery  to  be  brought 

I 'dolus"  signifies  "animus  occidendi",  and  certainly  in  the  sense  that 
if  the  "animus"  exists,  it  is  immaterial  whether  the  killing  be  public  or 
secret,  done  with  violence  or  with  cunning.  One  ma^'  imply  in  the 
word  "dolus"  a  certain  intention  to  injure.  This  appears  from  Cicero, 
who  says :  "Quod  ergo  es  animo  factum  est,  ut  homines  eadem  facerent, 
id  si  voluerunt  et  perfecerunt,  potestis  earn  voluntatem,  id  consilium,  id 
factum,  a  dolo  malo  seju7igere .^"  ("Pro  Tullio",  c.  10,  13,  14).  There 
are  also  often  found  the  expressions,  "consulto",  "sponte",  "sciens  et 
prudens",  which,  according  to  Ferrini,  proves  that  the  Roman  criminal 
law  made  distinctions  between  different  kinds  of  homicide.  This  differ- 
entiation was  clear,  since  these  various  expressions  were  different  designa- 
tions of  one  and  the  same  conception,  i.e.  "dolus."  Vogt  is  of  an  opposite 
opinion  ("Römische  Rechtsgeschichte",  p.  39).  He  says  that  the  word 
"consulto  ",  to  which  Ferrini  refers,  is  equivalent  to  the  word  "premedita- 
mente".  and  thus  when  a  statute  in  dealing  with  homicide  uses  the  word 
"consulto",  it  has  reference  to  homicide  done  with  premeditation,  i.e. 
one  finds  in  Roman  law  a  correct  conception  of  murder. 

We  prefer  the  opinion  which  justifies  Ferrini' s  \aewpoint ;  yet  his 
conclusions  seem  incorrect  and  even  daring.  The  meanings  of  "con- 
sulto", "sponte"  and  "sciens  et  prudens"  etc.  are  identical,  but  are 
not  the  same  as  "dolus."  This  certainly  is  true  of  "consulto."  The 
idea  originally  contained  in  "consulto"  was  that  of  meditation,  of  delibera- 
tion, taking  one's  own  counsel.  The  conception  is  rather  of  the  result 
of  the  meditation  and  deliberation ;  the  determination  upon  the  realiza- 
tion or  non-realization  of  the  purpose,  i.e.  malice  aforethought.  These 
ideas  make  the  opinion  of  Vogt  appear  preferable.  —  Vox  Thot.] 

2  There  are  differences  of  opinion  as  to  the  derivation  and  original 
meaning  of  the  word  "parricidium",  which  later  signified  the  murder  of 
near  relations.  Rein,  p.  450,  adheres  to  the  derivation  from  "pater" 
and  "csedere."  Others  prefer  the  derivation  from  "parens"  and 
"cjedere."  Osenhrnggen  cleverly  proposes  that  it  meant  merely  a  wicked 
("dolose")  slaying,  the  word  being  derived  from  "para"  which  is  equiv- 
alent to  "per",  -with  the  same  meaning  as  in  "perjurus"  or  "perfidia." 
Huschke,  p.  183,  says  it  is  derived  from  "parem  csedere"  and  refers  to 
the  killing  of  an  equal,  a  fellow  comrade  from  among  the  people. 

'  Livy,  I,  23. 

*  Fest  us,  "Verb,  sig."  under  "Pariei  Quaestores." 

12 


Chapter  I]  THE   ROMAN   LAW  [§  3 

in  a  "  judicium  publicum ",  also  contained  detailed  provisions 
calculated  to  restrict,  as  far  as  possible,  the  exercise  of  vengeance 
in  such  cases.  From  Gellius  (N.  A.,  X,  23)  "  in  adulterio  uxorem 
tuam  si  prehendisses,  impune  sine  judicio  necares  ",  it  may  be 
inferred  that  theretofore  the  right  had  been  given  a  wider  range, 
and  especially  that  the  husband  might  instantly  slay  the  wife 
apprehended  in  the  commission  of  the  guilty  act."' 

Influence  of  the  Principle  of  Vengeance  in  the  Treatment  of 
Other  Crimes.  —  Prior  to  the  Twelve  Tables  recourse  to  vengeance  \^ 
was  often  taken  in  cases  of  personal  injury.*^  The  Twelve  Tables 
established  the  "  talio  "  as  the  limit  to  which  vengeance  might 
be  exercised,'  in  case  the  offender  was  not  able  in  some  other  way 
to  settle  with  the  injured  party. ^     In  the  case  of  lesser  injuries  — 

5  C/.  Abegg,  "Untersuchungen  aus  dem  Gebiete  der  Strafrechtswissen- 
schaft" (1830),  p.  166.  The  husband  could  slay  the  adulterer,  but  not 
the  wife,  and  could  only  slay  the  former  if  he  belonged  to  the  "viliores 
personae."  The  father  was  permitted  to  slay  the  adulterer,  provided, 
at  the  same  time,  he  slew  his  own  daughter. 

^  [The  statutes  prior  to  the  Twelve  Tables  constitute  the  so-called 
"Jus  Papirianum."  These  contain  the  "Leges  regime",  and  were  com- 
piled by  the  Jm-ist  Caius  Papirianus.  These  statutes  forbade  the  kill- 
ing of  children  over  three  years  of  age  under  penalty  of  confiscation  of 
property.  But  if  the  eliild  was  disobedient  or  a  cripple  then  the  act 
was  unpunished.  The  daughter-in-law  who  mistreated  her  father-in-law 
became  "exsecrata"  and  could  be  slain  with  impunity  by  anyone.  In- 
tentional slaying  was  punished  as  "parricidium."  He  who  killi'd  another 
unintentionalh'  was  obliged  to  give  "aries"  to  the  relatives  of  the  slain. 
The  son  who  killed  his  father  became  "sacer"  and  anj'one  had  the  right 
to  kill  him.  ('/.  Dionigi  in  Capuano,  "Dottrina  e  storia  del  diritto 
romano"  (Napoli,  1864);  Sigonius,  "De  antique  jure  civili  Komano ", 
lib.  1,  e.  5 ;  Capobianco,  "11  diritto  penale  di  Roma"  (Firenze,  1894), 
pp.  19-22;  Bruns,  "Fontes  juris  romani  antiqui"  (Tübingen,  1860). — 
Vox  Tho't.) 

^  The  familiar  provision  in  the  Mosaic  Law  (cf.  especially.  Exodus, 
xxi,  24:  "Ej'e  for  an  eye,  tooth  for  a  tooth"  (Do  unto  others  what 
they  do  unto  you),  and  other  numerous  and  important  examples  of 
"talio"  (cf.  as  to  Greece,  Hermann,  "Lehrbuch",  note  9  ct  seq.;  "et 
Ke  irddoi  rä  k  epe^e,  Siktj  kI  deta  7^foiTo"),  are  not  direct  commands  but  rather 
limitations  upon  the  right  of  vengeance,  which  the  legislator  was  able  to 
limit  before  he  was  able  completely  to  suppress.  Cf.  especially,  ThonUsen, 
II,  p.  66. 

*  That  only  bodily  injuries  done  intentionally  are  referred  to,  may  be 
inferred,  on  one  hand,  from  the  inclusion  by  Gains,  imder  the  delict  of 
"injuria",  only  acts  done  "dolo",  and,  on  the  other,  from  the  above- 
mentioned  provision  relative  to  a  negligent  ("culpose")  slaying.  If 
in  the  latter  case  the  relatives  of  the  slain  man  were  obliged  to  be  satis- 
fied with  the  oft'ering  of  a  victim  in  expiation,  in  the  case  of  bodily  injuries 
they  would  not  have  a  more  extensive  right  of  revenge.  Kosllin,  "Älord 
und  Todtschlag",  p.  44,  and  Von  Ihcring,  "Das  Seliuldmonient  in  röm. 
Privatrecht"  (1867),  p.  11,  are  of  another  opinion  beeau.se  of  the  passjigo 
of  Gellius,  XX,  1,  §34.  But  the  words  "dcct-mviri  —  neque  ejus  qui 
membrum  alteri  rupisset  —  tantam  esse  ]ial)en(lam  rationem,  ut  an 
prudens  imprudeiisve  rupisset,  spectandum  i)utarent"  refer  (according 
to  a  more  correct  interpretation)   to  a  case  where  the  blow  was  given 

13 


§  3]  ROMAN    AND    GERMANIC    ELEMENTS  [Part  I,  TiTLE  I 

"  OS  fractum  aut  collisiim  "  as  distinguished  from  "  membrum 
raptum  "  —  the  "  taho  "  was  completely  excluded,  and  the  in- 
jured party  was  granted  a  definite  compensation.^ 

The  method  of  dealing  with  theft  was  more  closely  related  to 
the  principle  of  private  vengeance.  The  Twelve  Tables  per- 
mitted the  killing  of  the  "  fur  nocturnus  "  ^°  and  the  armed  thief 
(carrying  weapons  for  his  own  protection).  But  in  the  later  law 
this  was  allowed  only  as  an  artificial  extension  of  the  right  of  self- 
defense  ;  and  still  later  it  was  limited  to  actual  self-defense/^ 
since  the  man  whose  property  was  being  stolen  had  the  right  to 
seize  the  thief  whom  he  caught  in  the  act.  Moreover,  the  pun- 
ishment provided  for  "  furtum  manifestum  "  was  undoubtedly 
influenced  by  a  regard  for  private  vengeance.^-  "  Poena  mani- 
festi  furti  ex  lege  XII  tabularum  capitalis  erat ;  nam  liber  ver- 
beratus  addicebatur  ei  cui  furtum  fecerat"  {Gains,  IV,  189).  Here 
the  "  addictio  "  was  a  substitute  for  the  ancient  right  to  kill. 

"dolo  ",  and  the  special  kind  of  injury  was  intended,  as  we  to-day,  in  the 
classification  of  bodily  injuries  as  "grave"  and  "minor",  make  a  dis- 
tinction in  the  consequence  of  the  act.  For  of  a  "Violentia  pulsandi 
atque  laedendi ",  which  as  Gellius,  loc.  cit.,  says  should  be  restrained, 
there  can  be  a  doubt  only  in  case  of  an  intentional  ill-treatment,  and 
not  in  case  of  merely  negligent  ("culpose")  injury  in  the  doing  of  a  thing 
that  is  legally  permissible,  and  only  with  the  former  is  the  conclusion  of 
the  passage  consistent  —  "quoniam  modus  voluntatis  prsestari  posset, 
casus  ictus  non  posset."  One  has  it  in  his  power  to  determine  whether 
he  will  give  a  blow  or  a  kick,  but  it  is  not  in  his  power  to  injure  according 
as  the  blow  or  kick  happen  to  reach  their  mark. 

9  The  most  important  passage  is  Gains,  III,  223,  —  "Poena  autem 
injuriarum  ex  lege  XII  tabularum  propter  membrum  quidem  ruptum 
talio  erat,  propter  os  vero  fractum  aut  coUisum  trecentorum  assium 
poena  erat  veluti  si  libero  os  fractum  erat;  at  si  servo  CL:  propter 
ceteras  vero  injurias  XXV  assium  poena  erat  constituta."  As  observed 
by  Gains,  in  accordance  with  the  value  of  money  in  the  early  periods 
("in  magna  paupertate"),  these  fines  were  by  no  means  as  insignificant 
as  they  appear. 

1"  "Decemviri  in  XII  Tabulis  —  dixerunt  —  Si  nox  furtum  factum 
sit,  si  im  occisit,  jure  csesus  esto."     Macrob.  Saturn.  I,  e.  4. 

Cf.  Gellius,  VIII,  1.  XI,  18:  "furem  qui  manifesto  furto  prensus 
esset,  tum  demum  oceidi  permiserunt  (XII  Tab.),  si  aut  cum  faceret 
furtum,  nox  esset,  aut  interdiu  telo  se  quum  prenderetur,  defenderet." 
Cicero,  "Pro  mil."  c.  3.  "CoUatio  leg.  Mosaic."  VII,  pr.  L.  9  D.  Ad  leg. 
Aqu.  9,  2.     Cf.  Abegg,  "Untersuchungen",  p.  142. 

""CoUatio",  VII,  2:  "Paullus,  Libro  V  ad  legem  Corneliam  de 
sieariis  et  veneficis.  Si  quis  furem  noeturnum  vel  diurnum,  cum  se  telo 
defenderet  accident,  hac  quidem  lege  non  tenetur :  sed  melius  fecerit 
qui  eum  comprehensum  transmittendum  ad  pr^esidem  magistratibus 
optulerit."  Idem  c.  3,  §  1:  "Pomponius  dubitat,  num  h®c  lex  sit  in 
usu."  Paulus,  in  L.  9  D.  ad  leg.  Corn,  de  sieariis  48,  8:  "Furem 
noeturnum  si  quis  occiderit,  ita  demum  impune  feret,  si  parcere  ei  sine 
periculo  suo  non  potuit." 

12  For  the  definition  of  "furtum  manifestum"  see  especially  Gaius, 
III,  184. 

14 


Chapter  I]  THE  ROMAN  LAW  [§  3 

In  order  to  prevent  the  party  whose  i)roperty  was  stolen  from 
taking  immediate  vengeance  ^^  —  a  difficult  thing  to  prevent 
when  the  thief  was  caught  in  the  act  —  his  rights  were  extended 
as  far  as  possible. ^^  Consequently,  "  furtum  manifestum  " 
at  a  later  time  was  a  basis  for  the  praetorian  action  for  a 
fourfold  penalty/^  while  in  "  fur  nee  manifestum  "  only  a  two- 
fold penalty  could  be  claimed.^''  It  is  easy  to  understand  why 
in  a  case  of  theft  (except  theft  of  field-produce,  as  above  men- 
tioned), there  is  nothing  said  as  to  the  thief  becoming  "  sacer." 
The  law  proclaimed  as  "  sacer  "  the  man  against  whom  it  required 
vengeance.  But  the  legislator,  in  view  of  the  attitude  which 
exists  everywhere  in  uncivilized  times  (one  need  only  consider 

"  A  slave,  according  to  the  Twelve  Tables,  forfeited  his  life ;  he  was 
flogged  and  then  cast  from  a  high  rock :   Gellius,  N.  A.  XI,  18. 

^*  Cf.  Hepp,  "Versuche  über  einzelne  Lehren  der  Straf rechtswissen- 
schaft"  (1827),  pp.  132  et  seq. 

'*  Other  explanations  are  not  satisfactory,  cf.  Hepp,  pp.  110  et  seq.; 
Rein,  p.  298,  note;  Zumpft,  I,  p.  37G.  That  the  thief  caught  in  the  act 
is  always  a  very  daring  and  dangerous  person,  is  certainly  not  true ;  on 
the  contrary  he  is  just  as  likely  to  he  a  cowardly  person.  The  proposi- 
tion, that  some  special  favor  should  be  shown  to  the  man  who  is  vigilant 
as  to  his  property,  is  too  artificial  for  acceptance.  His  vigilance  is  cer- 
tainly rewarded  in  any  case,  since  he  retains  his  possessions,  and  rewards 
and  inducements  for  guarding  one's  property  against  unlawful  acts  are 
generally  superfluous.  The  explanation  that  one  who,  because  of  fear, 
is  not  in  a  position  to  judge  fairly,  will  inflict,  upon  the  thief,  who  is  caught 
in  the  act  or  who  confesses,  only  the  extreme  penalty,  is  not  satisfactory, 
in  that  it  does  not  apply  to  a  confession.  Moreover,  there  is  nothing  to 
be  said  relative  to  the  greater  offense  to  the  man  whose  goods  are  stolen 
by  a  "furtum  manifestum."  The  fact  that  he  is  caught  in  the  act  is 
for  the  most  part  merely  a  consequence  of  a  lack  of  skill  on  the  jiart  of 
the  thief.  The  view  taken  in  the  text  is  also  in  accord  with  the  early 
Roman  conception,  in  L.  7.  §  1  D.  "De  furtis,"  47,  2,  which  required  for 
a  "furtum  manifestum"  the  actual  ai)prehension  of  the  thief,  and  was 
not  satisfied  witli  the  immediate  knowledge  that  the  act  had  lieen  com- 
mitted. In  the  time  of  Justinian  {cf.  §  3  J.  4,  1),  the  origin  of  the  special 
legal  rules  in  regard  to  "furtum  manifestum"  were  no  longer  understood, 
—  hence  the  wider  extension  of  the  concej)tion.  It  was  an  artificial  ex- 
tension of  "furtum  manifestum,"  as  daiiis  himself  says  (111,  194),  that 
according  to  the  Twelve  Tables  he  was  considered  a  "fur  manifestus"  in 
whose  home  the  stolen  goods  were  found  by  means  of  a  formal  search 
("lance  et  licio").  Tiie  individual  with  whom  the  stolen  i)r()perty  was 
found  without  such  a  formal  s(>arch  had  to  pay  three  times  tlieir  value 
because  of  "furtum  conceptum"  (not  however  if  he  could  immi'diately 
show  he  had  acquired  tlie  goods  lawfully).  This  provision  )>uiiislu'(l  the 
receiver  of  stolen  i)roperty.  For  the  protection  of  the  formal  searching 
of  a  house  there  existed  the  "actio  furti  i)roliibiti"  for  fourfold  the 
value  of  the  stolen  article,  against  iiim  who  did  not  permit  a  searching 
of  the  house  when  demanded  in  the  proper  manner.  ('/.  RudorjJ,  11, 
p.  352. 

"^  A  private  settlement  with  money  was  frequently  made,  e\en  before 
the  Twelve  Tables,  as  indicated  l)y  the  old  form  of  complaint:  "pro 
fure  damnum  decidere  opportere."  The  Praetor  merely  adopted  an  es- 
tablished custom.     Cf.  RudorjJ,  II,  p.  350. 

15 


§  4]  ROMAN    AND    GERMANIC    ELEMENTS  [Paut  I,  TiTLK  I 

our  own  peasants),  had  little  oeeasion  to  provide  rigorous  and 
summary  punishment  for  injuries  to  property  rights.  The  one 
exception,  having  to  do  with  theft  from  the  fields,  may  readily  be 
explained  as  a  concession  to  established  custom  and  considera- 
tions of  public  policy. 

§  4.  "  Perduellio."  —  In  cases  of  homicide,  private  vengeance 
and  private  compensation  disappeared  at  an  early  date,  and  were 
replaced  by  public  punishment.  The  small  Roman  community, 
surrounded  as  it  was  by  many  enemies,  regarded  the  murder 
("  dolose  Tödtung  ")  of  one  of  its  citizens  as  an  attack  upon  its 
own  strength  and  prosperity,  and  as  a  breach  of  the  duties  owed 
to  it  by  the  individual.  This  circumstance  had  a  significant 
bearing  upon  the  Roman  criminal  law. 

Originally,  the  only  crime  against  the  State,  as  such,  was 
"  perduellio  ",  i.e.  the  individual  assuming  as  towards  the  State 
the  relation  of  war  ("  duellum  "  =  "  bellum  "  ;  "  perduellis  " 
=  base  or  evil  enemy).  It  included,  primarily,  betrayal  of  the 
country  to  a  foreign  enemy,  desertion  to  the  enemy  in  time  of 
war,  and  attacks  upon  the  institutions  of  the  country  by  the  under- 
taking of  acts  which  could  be  regarded  as  encroachments  upon 
the  supreme  rights  of  the  State.  There  were  included  among 
such  acts,  in  the  time  of  the  Republic,  attempts  to  establish  a 
despotism,  and  attacks  upon  the  magistrate  of  the  Plebs,  who  was 
declared  to  be  especially  sacred,  and  in  the  time  of  the  Empire, 
attempts  against  the  person  of  the  emperor. 

According  to  the  Roman  conception,  any  act,  in  consequence 
of  special  circumstances,  could  be  regarded  as  criminally  prejudical 
to  the  interests  of  the  State  and  be  dealt  with  as  such.  Judgment 
in  such  cases  was  passed  by  the  holder  of  the  sovereign  power,  — 
in  the  early  periods,  by  the  king ;  later,  in  accordance  with  the 
"  Lex  Valeria  ",  by  the  people,  when  appeal  was  taken  to  them  as 
a  tribunal  of  last  resort ;  and,  in  accordance  with  the  Twelve 
Tables,  by  the  people  as  a  court  of  first  instance,  in  the  "  comitia 
centuriata."  "  Perduellio  ",  as  shown  by  the  form  of  the  com- 
plaint :  "  Tibi  perduellionem  iudico  ",^  was  not  so  much  the 
criminal  act  as  rather  the  position  in  which  the  offender  was 
placed  as  a  punishment  —  the  treatment  of  hhn  as  an  enemy  of 
the  State.^    Under  such  conditions,  it  was  also  possible  to  regard 

1  Livy,  I,  26,  7 ;  cf.  XXVI,  3. 

2  Correct  view,  Rudorff,  II,  p.  365,  note  1,  and  Huschke,  p.  185,  note 
109.     To  the  contrary  Rein,  pp.  466  et  seq. 

16 


Chapter  I]  THE  ROMAN  LAW  [§  5 

as  "  perduellio  "  the  murder  of  a  citizen/''  e.g.  the  murder  of  the 
sister  in  the  story  of  the  Horatii.  On  the  same  ground  the  Senate 
was  able  later,  without  further  authority,  to  prosecute  as  State 
criminals  the  Bacchantes  (a  corrupting  influence  among  the  Roman 
women),  since  they  appeared  to  have  attributes  prejudicial  to 
the  public  welfare.  The  further  criminal  character  of  either  the 
act  or  its  author  was  of  no  consequence. 

"  Multas  Irrogatio." — This  indefinite  character  of  "per- 
duellio "  is  especially  noticeable  in  its  plebeian  counterpart,  the 
"  multse  irrogatio  "  on  the  part  of  the  plebeian  magistrate."* 
Since  the  laws  declared  that  violations  of  the  sacred  rights  of  the 
Plebs  were  acts  reducing  their  author  to  a  relation  of  war  towarrl 
the  Plebs,  it  was  possible  for  the  Tribunes  of  the  Plebs  (or  perhaps 
the  xEdiles)  to  levy  upon  the  offender  heavy  fines,  the  amount 
of  which  would  be  arbitrarily  fixed  by  the  Plebs  ("  multse  irro- 
gatio ").  As  acts  entailing  such  a  penalty,  there  appear  (in 
addition  to  e.g.  attempts  to  establish  a  despotism,  retention  of  an 
office  beyond  its  term,  engaging  in  war  without  the  order  of  the 
Senate,  abuse  of  official  power,  and  offending  the  people  by  vain 
display)  also  acts  such  as  partiality  in  the  distribution  of  booty 
of  war,  appropriation  of  public  money  to  one's  own  use,  employ- 
ment of  the  army  for  private  enterprises,  abuse  of  the  censorship, 
offenses  against  religion,  sorcery,  usurj%  and  even  lewdness  and 
other  offenses  against  morality  in  its  narrower  sense. 

§  5.  Roman  Conception  of  the  Relation  of  the  Individual  to  the 
State.  —  The  exceedingly  indefinite  character  of  the  old  State 
crime  —  which  originally  was  the  only  public  crime  —  rests,  in 
our  opinion,  not  upon  the  nature  of  the  crime  itself,^  but  rather 
upon  the  peculiar  Roman  conception  of  the  relation  of  the  indi- 
vidual to  the  State,  i  According  to  the  Roman  conception  the 
individual  has  no  rights  which  the  State  is  bound  to  respect.  This 
is  forcibly  illustrated  by  the  well-known  absolutism  of  the  magis- 

^  Cf.  Nissen,  "Das  Justitium,  eine  Studie  aus  der  römischen  Reehts- 
geseliichte"  (1877),  pp.  24  et  seq. 

^  Cf.  especially  the  excellent  investigations  of  Iluschkc,  pp.  145  el 
seq.,  and  particularly  the  remarks  on  p.  179. 

'  Herein  we  differ  from  the  opinion  of  Iluschke,  "Crime  as  such  is  a 
mere  ethical  negation;  it  has  in  itself  no  valid  distinction,  since  'non 
entis  nulla  sunt  pnT?dicata"'  (Ifu.'iclike,  p.  211).  I  believe  that  wrong 
("Rechtsverletzung")  and  punishment  are  here  interchanged.  Crime, 
as  a  wrong,  must  have  definite  limits,  just  as  it  is  necessary  that  there 
be  a  dehnitive  establishment  of  the  right  that  has  been  violated.  How- 
ever, punishment  was  originally  of  but  one  kind  —  banishment  from  the 
community  or  death. 

17 


§  5]  ROMAN   AND   GERMANIC    ELEMENTS  [Part  I,  Title  I 

träte  in  the  time  of  the  RepubHc,  who,  during  his  term  of  office, 
was  regarded  as  directly  representing  the  "  populus."  It  appears 
also  in  the  absence  of  any  means  by  which  an  official  act  of  a  magis- 
trate could  be  treated  as  null  and  void.-  Furthermore,  it  is 
shown  by  the  fact  that  the  State  treasury  ("  fiscus  ")  could  not 
be  made  a  party  to  an  action,^  and  also,  later,  by  the  absolute 
power  of  the  emperor.  There  were,  to  be  sure,  some  laws  which 
sought  to  guarantee  to  the  citizen,  as  against  the  State,  a  definite 
range  of  legal  rights  (and  all  laws  relating  to  the  "  judicia  publica  " 
were  such),  and  sought  to  place  definite  limitations  upon  the 
originally  unrestricted  criminal  law  of  the  State,"*  and  thereby 
render  it  more  certain  in  its  operation.  But  according  to  the 
Roman  conception  these  were  only  voluntary  concessions  on  the 
part  of  the  State,  which  at  its  discretion  might  be  withdrawn, 
and  are  not  consequences  of  an  adherence  to  a  uniform  legal 
ideal.  Consequently  any  such  concession  could  be  withdrawn, 
e.g.  by  the  appointment  of  a  dictator,  if  the  Senate  declared  the 
State  to  be  in  danger.^  Thus  it  is  easily  explainable  why  the  right 
to  liberty  of  the  citizen  as  against  the  magistrate,  since  it  was 
merely  the  result  of  a  positive  concession,  was  limited  to  the  city 
of  Rome  and  its  immediate  vicinity.^ 

Germanic  Conception  of  the  Relation  of  the  Individual  to  the 
State.  —  According  to  the  Germanic  conception  —  and  this 
comparison  seems  to  us  to  be  especially  appropriate  as  an  illus- 
tration —  there  obtain  quite  different  conditions.  The  rights  of 
the  individual  as  against  the  State  are  not  based  upon  some  posi- 
tive law,  liable  to  be  modified  at  discretion  or  suspended  in  its 
operation  by  the  enactment  of  some  other  law,  but  are  based  upon 
that  ideal  of  law  of  which  contract  and  statute  are  merely  the 
expression.  Even  the  king,  according  to  the  Germanic  concep- 
tion of  law,  must  submit  to  the  jurisdiction  of  the  court.  Against 
the  State  treasury  ("  fiscus  "),  and  against  the  State  as  a  legal 
entity,  "  jura  quaesita  "  in  the  fullest   sense  may  be  obtained. 

^  Against  this  there  was  effective  only  the  intercession  of  a  "  par 
majorve  potestas." 

'  Cases  in  which  the  "fiscus"  was  concerned  were  later  decided  by 
the  "procurator  fisci"  and  not  by  the  court. 

■•  As  to  this  point,  see  the  above  cited  work  of  N^issen. 

*  This  also  explains  the  fact  that  the  Romans,  especially  in  the  time 
of  the  Repubhc,  often  gave  to  their  criminal  statutes  an  "ex  post  facto" 
effect  —  "qui  fecit,  fecerit"  —  without  considering  it  as  anything  out 
of  the  ordinary.  Cf.  Seeger,  "Abhandlungen  aus  dem  Strafrecht"  (II, 
1862),  p.  1  et  seq. 

^  Cf.  Puchta,  "Institutionen",  I,  §  51,  note  6. 

18 


Chapter  I]  THE   ROMAN   LAW  [§  5 

Personal  rights  follow  the  Germanic  individual  ever\nvhere,  and 
decrees  derogatory  thereof  are  null  and  void. 

Contribution  of  Roman  Criminal  Law  to  the  Establishment  of 
Individual  Rights.  —  The  significant  bearing  upon  the  world's 
history,  customarily  ascribed  to  the  Roman  Law  "  as  a  factor  in 
assisting  the  individual  human  being  to  assume  a  position  of 
importance  "per  se",  and  to  acquire,  to  a  certain  extent,  a  posi- 
tion of  independence  towards  the  State,  is  contrary  to  fact.  These 
results  were  obtained  only  when  the  Germanic  ideal  of  law  had 
impressed  itself  upon  the  progress  of  humanity^ 

]\Ioreover,  it  is  not  true  that  in  these  respects  the  Romans  were 
clearly  in  advance  of  the  Greeks.  The  much  greater  strictness 
shown  in  limiting  the  jurisdiction  of  the  Athenian  magistrate, 
the  actual  and  careful  protection  in  Athens  of  the  rights  of  the 
individual  ^  as  against  the  State,  speak  to  the  contrary.  At  any 
rate  there  did  not  prevail  in  Athens  the  Roman  conception  that 
the  rights  of  the  State  are  unlimited ;  that  the  individual  should 
be  fashioned  after  an  ideal  model ;  and  that  he  could,  arbitrarily, 
be  reared  as  a  component  unit  of  the  State.  We  do  not  find  in 
Rome  statutes  enacted  with  a  primary  regard  for  the  welfare  of 
the  individual,  such  as  those  of  Zaleukos  and  Charondas  penaliz- 
ing evil  association,  or  those  of  the  Locrians  penalizing  the  drink- 
ing of  unmixed  wine,  or  even  those  of  Solon,  which  punished  the 
lack  of  a  business  or  trade,^  and  endeavored  to  prevent  suicide.'" 
While  it,  indeed,  may  be  said  that  the  Roman  State  made  a  sharper 
distinction  than  the  Greek,  between  law  and  morality,  yet  it  gave 
to  the  individual  no  rights  inviolable  as  against  the  State. 

This  accounts  for  the  many  respects  in  which  the  Roman  crimi- 
nal law  occupies  an  unfortunate  position  for  comparison  with  the 
private  law.  It  also  explains  the  brutal  (it  may  well  be  called) 
manner  in  which  the  statutes,  the  imperial  constitutions,  and  the 
"  senatus  consulta  "  penalized  acts  which,  in  themselves,  did 
not  in  any  way  violate  a  right  —  and  perhaps  could  be  regarded 
only  as  remotely  prejudicial  to  a  right.  It  also  explains  that 
element  of  indefiniteness  and  of  analogy  to  regulations  laid  down 
by  the  police  power,  which  characterizes  the  most  comprehensive 

^  C/.  e.g.  Hildenhrand,  "Geschichte  und  System  der  Rechts-  und  Staats- 
philosophie ",  I,  p.  .524. 

8  Especially  in  criminal  procedure. 

^Hermann,  "  Lehrljuch  der  griechischen  Privatalterthümer ",  §  00, 
note  4,  seq. 

'ö  Hermann,  §  62,  note  27.  In  Athens,  the  hand  of  one  who  had 
committed  suicide  was  cut  off. 

19 


§  5]  ROMAN    AND    GERMANIC    ELEMENTS  [Pakt  I,  TiTLE  I 

of  tlio  Roman  criminal  statutes,"  which,  in  order  surely  to  reach 
})reliminary  acts,  gave  to  them  the  same  legal  effect  as  the  crimes 
to  which  they  might  refer.  It  also  explains  the  fact  that  judicial 
practice  in  the  field  of  criminal  law,  at  least  in  its  operation  in  the 
Roman  State,  has  in  part  performed  only  a  labor  of  Sisyphus, 
which  did  not  produce  real  results  until  our  own  time.  The 
theory  of  the  Roman  private  complaint,  in  which  legal  principle 
obtained  in  a  purer  form,  is  often  of  more  importance  for  us  than 
the  utterances  of  the  Roman  jurists  concerning  the  "  crimina 
publica."  At  least  these  utterances  need  to  be  supplemented 
or  modified  by  reference  to  the  private  complaint  before  they 
become  useful  for  our  purposes.^- 

"  Laboulmje,  p.  265,  explains  this  peculiar  character  of  the  composition 
of  the  criminal  statutes  by  the  statement  that  they  were  statutes  whose 
purpose  was  to  confer  jurisdiction,  and  were  of  the  same  nature  as  statutes 
assigning  to  one  and  the  same  "quaestio"  power  to  deal  with  different 
delicts.  But  jurisdiction  was  not  the  only  matter  with  which  the  criminal 
statutes  of  the  Republic  were  concerned.  They  also  fixed  punishments. 
Moreover  the  fact  that  more  attention  was  given  to  the  matter  of  juris- 
diction than  to  an  exact  definition  of  the  crime  (c/.  Laboulmje,  p.  304)  is 
further  evidence  of  the  arbitrary  manner  in  which  the  Romans  dealt  with 
the  substantive  criminal  law. 

12  The  "Lex  Cornelia  de  sicariis",  a  statute  which  governed  the  entire 
later  development  of  the  law  relating  to  homicide,  is  an  illuminating 
example  of  the  method  of  procedure  of  the  Roman  criminal  legislation. 
Carrying  weapons  with  the  intention  of  killing  some  one  or  merely  with 
the  intention  to  accomplish  a  theft,  the  manufacture  or  purchase  of 
poison  which  was  eventually  to  be  given  to  some  one,  the  starting  of 
fires  in  the  city  of  Rome  and  its  immediate  vicinity,  the  bearing  of  false 
witness  with  the  purpose  of  causing  capital  punishment  to  be  inflicted 
upon  another,  the  bribery  or  the  unfairness  of  a  magistrate  or  "judex 
qucTBstionis"  with  the  same  end  in  view,  the  illegal  condemnation  of  a 
Roman  citizen  by  a  magistrate  or  the  Senate  without  a  "judicium  pub- 
licum" (c/.  Cicero,  "Pro  Cluentio ",  c.  54),  —  these  were  all  included 
under  one  and  the  same  statute,  a  statute  which  forbade  intentional 
homicide.  By  imperial  constitutions  and  decrees  of  the  Senate  there 
were  also  added  the  crime  of  castration  and  even  the  holding  of  "mala 
saerificia"  {cf.  L.  1,  4,  13  D.  "Ad  leg.  Corneliam  de  sic",  48,  8).  The 
"Lex  Cornelia  de  falsis"  furnishes  another  example.  By  an  extension 
of  this  statute  (by  decree  of  the  Senate)  anyone  was  punished  for  "fal- 
sum"  who  took  money  for  suppressing  evidence,  and  also,  according  to 
the  "  Senatusconsultum  Claudianum",  he  who,  in  writing  the  testament 
of  another,  wrote  out  a  disposition  in  his  own  favor,  even  at  the  request 
of  the  testator  and  perhaps  "optima  fide"  (L.  15  pr.  D.  eod. ;  L.  3  C. 
"De  his  qui  sibi",  9,  23).  Here  the  mere  possibility  of  a  forgery  sufficed 
to  entail  a  criminal  punishment.  The  "Lex  Julia  de  adulteriis"  without 
further  enquiry  punished  as  a  procurer  the  husband  who  did  not  disown 
a  wife  whom  he  had  apprehended  in  an  act  of  adultery  (L.  2  §  2  D.  48,  5). 
The  "Lex  Julia  de  vi"  punished  those  who  possessed  an  unusual  quantity 
of  weapons,  nor  were  they  allowed  to  prove  that  they  had  these  weapons 
for  a  special  purpose  which,  in  itself,  was  legal.  Also  those  were  punished 
"qui  pubes  cum  telo  in  publico  fuit."  All  these  cases  were  grouped  with 
cases  of  actual  violent  attacks  upon  villages,  of  "stuprum  violentum  ", 
and  of  theft  with  force  of  arms  dm-iug  a  conflagration. 

20 


Chapter  I]  THE  ROMAN  LAW  [§  6 

It  might  be  argued  in  reply,  tliat  only  statutes  designefl  to 
serve  a  temporary  end  are  being  considered.  But  the  description 
as  a  statute  designed  to  serve  a  temporary  end  can  not  be  applied 
to  e.g.  the  "  Lex  Julia  de  adulteriis",  enacted  in  the  time  of  Augus- 
tus. Also  the  fact  that  laws,  which  if  they  were  partly  of  a  tem- 
porary nature  could  for  centuries  form,  as  it  were,  the  skeleton 
of  the  public  criminal  law,  and  the  fact  that  no  later  attempt 
was  made  to  replace  these  laws  by  others  of  more  definite  legal 
principles,  but  that  the  further  development  of  the  criminal  law 
in  the  imperial  constitutions  and  the  "  Senatus  consulta  "  fol- 
lowed the  same  arbitrary  method  is  a  sufficient  revelation  of  the 
character  of  the  Roman  criminal  legislation. 

§  G.  The  Jurisprudence  of  the  Empire.  —  The  legal  science  of 
the  jurists  of  the  time  of  the  Empire  '  represents  in  many  respects 
the  reaction  of  the  ideal  of  law  against  arbitrary  methods  of  legis- 
lation. We  notice  that  there  was  an  endeavor  to  separate  more 
strictly  the  various  kinds  of  crime,  which  in  the  earlier  statutes 
were  grouped  together  at  random.  An  attempt  was  also  made 
to  introduce  more  proper  distinctions  of  the  degrees  of  guilt. 
But  for  the  most  part  it  was  impossible  to  remedy  the  statutes' 
lack  of  an  exact  statement  of  the  acts  constituting  the  crime. 
The  interposition  of  legislation  which  was  not  supported  by 
fixed  principles  and  traditions  {i.e.  in  this  later  period,  the 
imperial  constitutions  and  the  "  Senatus  consulta  ")  made  the 
task  more  difficult.  The  ultimate  result  is  that,  in  the  public 
criminal  law,  arbitrary  and  accidental  rules  are  far  less  widely 
separated  from  that  which  is  of  permanent  value,  than  in  the 
private  law. 

Real  Explanation  of  Arbitrary  Nature  of  Roman  Criminal  Law. 
—  The  final  and  real  explanation  of  the  peculiarly  arbitrary  char- 
acter of  the  Roman  criminal  law  is  to  be  found  in  the  fact  that  the 
constant  wars  in  which,  from  the  very  beginning,  the  small  Roman 
State  was  obliged  to  struggle  for  its  existence,  precluded,  from 
the  outset,  the  idea  of  a  fixed  and  rigid  boundary  between  acts 
which  were  essentially  criminal  and  morally  culpable,  and  those 
which  merely  were  likely  to  prove  dangerous.  An  act  which,  at 
other  times,  has  no  special  significance,  may  in  times  of  danger, 
assume  a  very  difierent  character.     There  is  a  tendency,  for  the 

'  Cf.  also  Fadelelti,  pp.  258  el  seq.  Pernice,  pp.  1  et  seq.,  is  of  the 
opinion  that  to  a  ffrcat  extent  the  treatment  by  the  Roman  jurists  of  the 
erimiiial  law  can  be  shown  to  be  without  principles  and  superficial.  I 
doubt  if  his  criticism  and  conception  in  this  respect  are  correct. 

21 


^  7]  ROMAN    AND    GERMANIC    ELEMENTS  [Paut  I,  TiTLE  I 

sake  of  a  prompt  and  vigorous  repression  and  to  avoid  the  diffi- 
culty of  proof,  to  apply  the  full  statutory  j)enalty  to  eases  in  which 
a  more  exact  and  proper  consideration  would  reveal  a  substantial 
defect  in  the  facts  necessary  to  constitute  the  crime.  "  In  hello 
(populus)  sic  paret  ut  regi :   valet  enim  salus  plus  quam  libido."  ^ 

Since  such  times  of  danger  were  of  frequent  occurrence,  and 
since,  as  was  doubtless  the  case,  the  military  training  to  which 
the  citizens  were  subjected  for  the  greater  part  of  their  lives  made 
such  a  method  of  dealing  with  criminal  law  appear  natural,  and 
since,  as  already  remarked,  the  freedom  of  the  Roman  citizen 
counted  for  little  (outside  of  the  immediate  vicinity  of  the  city), 
it  was  natural  that  the  permanent  legislation  came  to  show  no 
understanding  of  the  difference  between  acts  which  are  really 
criminal  and  acts  which  are  merely  dangerous.  In  addition  to  this 
there  is  the  fact  that,  immediately  after  the  time  of  the  kings,  the 
entire  criminal  jurisdiction  (primarily  as  a  result  of  the  "  provo- 
catio  "  against  the  decrees  of  a  magistrate)  devolved  upon  the 
popular  assembly  which  also  possessed  the  legislative  power, 
and  were  not  strictly  bound  by  statute ;  it  passed  judgment 
upon  the  person  —  the  character  of  the  accused  —  more  fre- 
quently than  upon  the  facts  which  constituted  the  basis  of 
the  complaint. 

There  is  connected  herewith  that  paramount  consideration 
which  was  always  given  to  "  dolus  "  in  the  "  judicia  publica  ",  and 
that  neglect  of  the  issues  of  fact  relating  to  the  crime.  Even 
to-day,  in  State  crimes,  there  is  a  tendency  to  give  especial  weight 
to  (as  the  Romans  would  say)  the  "  animus  hostilis  "  against 
the  "  res  publica." 

§  7.  The  Law  of  the  Twelve  Tables.  —  The  law  of  the  Twelve 
Tables  is  somewhat  opposite  in  character  to  the  other  criminal 
legislation  of  the  Republic.  Its  purpose,  as  already  noticed,  was 
clearly  and  firmly  to  set  forth,  as  a  protection  of  the  Plebs  against 
arbitrary  treatment,  the  law  which  actually  prevailed ;  to  be  a 
codification  —  in  which,  however,  development  along  certain 
lines  was  not  precluded.  The  provisions  of  the  Twelve  Tables 
are  not  of  that  indefinite  character,  analogous  to  the  regulations 
by  the  police,  which  is  later  so  often  met  with. 

In  addition  to  the  rules,  already  mentioned,  relating  to  murder 

(and   possibly   to   manslaughter   resulting   from    negligence),    to 

theft,  and  to  bodily  injuries,  the  Twelve  Tables  also  contained 

^  Cicero,  "De  rep.",  I,  c.  40,  §  63. 

22 


Chapter  I]  THE  ROMAN  LAW  [§  8 

provisions  prescribing  the  death  penalty  for  treason,^  for  (inten- 
tionally) setting  fire  to  a  house  or  to  a  supply  of  grain  lying  near 
a  house,^  for  bearing  false  witness,  for  corruption  when  acting  as 
a  "  judex  "  or  "  arbiter  ",^  and  for  inventing  and  si)reading  satires 
and  scurrilous  stories.^  It  is  recorded  that  the  Twehe  Tables 
punished  (presumably  with  death)  the  utterance  of  magic  for- 
mulas '  to  the  detriment  of  another's  person  or  another's  crops. ^ 
Possibly  they  also  contained  other  criminal  provisions/  and  also 
provisions  in  the  nature  of  police  regulations  and  against  extrava- 
gance (e.g.  prohibition  of  burial  within  the  city)  ^  and  limitations 
upon  expenditure  in  funeral  processions  and  l)urials.^ 

§  8.  Power  of  the  "  Paterfamilias  "  as  Supplement  to  Criminal 
Law.  —  Because  of  the  simple  conditions  of  life  in  the  early  periods 
of  Rome,  a  great  number  of  public  criminal  laws  was  not  necessary. 

In  the  first  place,  the  criminal  law  was  supplemented  by  the 
very  extensive  criminal  and  disciplinary  power  of  the  head  of  a 
household  over  the  children,  married  women,  and  slaves  under 
his  control.  Since  this  authority  in  no  way  precluded  the  exer- 
cise of  the  public  criminal  power,  it  was  often  optional  with  the 
accuser  whether  or  not  to  invoke  the  public  power,  and  it  often 
depended  upon  the  discretion  of  the  magistrate  whether  or  not 
he  would  interpose  his  authority.  There  were  also  subjected  to 
the  disciplinary  power  of  the  head  of  the  household  ^  many  acts 

^  "Qui  hostem  concitaverit  quive  civem  hosti  tradiderit."  L.  3  pr.  D. 
"Ad  leg.  Jul.  maj.",  48,  4. 

2  L.  9.  D.  "De  incendio  ruina",  47,  9. 

'  Gellius,  XX,  1,  §§7,  53.  The  false  witness  was  to  be  thrown  from 
the  Tarpcian  Rock. 

''  Zumpft,  I,  p.  482  refers  this  provision  to  satirical  songs  of  a  political 
nature. 

^  "Qui  fruges  excantasset  .  .  .  neve  alienam  segetem  pellexeris."  Cf. 
Bruns,  "Fontes  juri  Rom.  antiqui"  (3d  ed.),  p.  28. 

*  The  holding  of  assemblies  by  night  in  the  city  was  also  punished. 
"Primum  XII  tab.  cautum  esse  eognoseimus,  ne  quis  in  urbe  ccBtus 
nocturnos  agitaret."      Bruns,  lac.  eit.  p.  31. 

'  (^onc(>riiing  poisoning.     Cf.  also  L.  236  D.  "De  V.  S.",  50,  16. 

"  "Hoiniiicin  niortuiun  in  urbe  ne  sepelito  neve  urito."     Bruns,  p.  33. 

9  Cf.  Bruns,  pp.  33,  34. 

•  A  comphiint  could  also  be  lodged  against  slaves  by  virtue  of  the 
"Leges."  In  this  case  the  usual  punishments  (e.g.  fines),  since  they 
had  no  property,  were  inapplicable.  Cf.  L.  12  §  4  D.  "De  accusat.", 
48,  2.  As  to  "filii  familias"  i.e.  the  agnate  descendants  of  a  "pater 
familias",  cf.  L.  6  §2  D.  "Ad  leg.  .Jul.  de  adulter."  48,  5.  Perhaps 
the  relation  of  the  jurisdiction  of  the  State  to  that  of  the  "familia"  was 
that  "de  facto"  the  judgment  of  the  Iiead  of  thi-  household  was  respected. 
Undue  severity  of  the  liead  of  tlie  family  gnuhuiUy  came  into  disfavor. 
Prominent  women  were  spared  the  sliaiiie  of  a  public  execution,  since 
when  sentence  had  been  passed  they  were  turned  over  to  their  family 
for  execution.     Livy,  XXXIX,  13.     Zumpft,  I,  p.  358. 

23 


§  8J  ROMAN    AND    GERMANIC    ELEMENTS  [Paut  I,  TlTLK  I 

of  those  under  his  control,  whicli  if  «lone  by  a  person  "  sui  juris  " 
would  come  under  the  jurisdiction  exercised  by  the  Censor  in 
matters  of  morality  and  custom. 

The  Censorship.  —  The  Censors  had  no  power  of  punisliment 
as  such.  But  they  possessed  the  right  to  draw  up  the  list  of  citi- 
zens liable  to  taxation  and  entitled  to  vote.  Since  every  official 
act  of  a  magistrate  was  valid  and  effective,  regardless  of  its  funda- 
mental character,  they  did  not  consider  themselves  governed 
strictly  (i.e.  in  matters  of  taxation)  by  the  relative  amount  of  the 
taxable  property' ;  they  also  regarded  themselves  as  authorized 
to  prejudice  and  "  pro  tanto  "  take  away  the  political  rights  of 
an  individual  ^  for  the  duration  of  the  census,^  by  transferring 
him  to  another  "  tribus  "  (by  the  "  inter  aerarios  referre  ")  ^ 
and  by  the  omission  of  his  name  from  the  list  of  members  of  the 
Senate.  In  this  manner  he  could  be  directly  exposed  to  the 
disrespect  and  contempt  of  the  multitude.^  The  Censors  exer- 
cised their  power  in  this  same  way  in  cases  of  perjury  —  w^hich  was 
not  a  criminal  act  by  the  civic  law  ^  —  and  also  in  cases  of  undue 
desire  shown  for  innovation  in  proposing  legislation,  of  lack  of 
respect  for  the  old  statutes,  of  violation  of  the  duty  of  respect 
due  to  authority,  of  extreme  although  not  criminal  cruelty,  of 
neglect  of  discipline  and  morality  in  marriage,  of  celibacy,  of 
undue  luxury,  and  of  bad  management  of  household  affairs. 

Infamy.  —  The  provisions  of  the  civil  law  relative  to  infamy 
("  infamia  ")  can  also  be  regarded  as  supplementary  to  the  crimi- 
nal law.  He,  against  w^hom  judgment  was  passed  as  defendant 
in  certain  civil  complaints  based  upon  either  a  tort  ("  delict  ")  or 
a  breach  of  trust,  became  "  infamis."  This  entailed  the  loss  of 
the  capacity  of  holding  offices  of  honor  and  the  right  to  vote  in 
the  public  assembly,  and  also  brought  certain  disadvantages  in 

2  For  personal  unworthiness.  Juristieally  speaking,  the  "Xota  cen- 
soria"  was  not  a  punishment ;  it  could  result  from  a  punishment :  Cicero, 
"Pro  Cluentio",  c.  42  et  seq.     Cf.  Plainer,  p.  13. 

^  The  new  Censors  could  with  the  new  "lustrum"  revoke  the  official 
acts  of  their  predecessors  by  simply  changing  the  lists.  Thus  there  was 
often  "ipso  facto"  a  "rehabilitation."  Loss  of  honor  as  a  result  of  a 
"judicium"  had  a  more  lasting  character. 

*  Later  "aerarii"  ceased  to  exist,  and  the  power  of  the  Censors  was 
limited  to  the  right  to  transfer  from  one  of  the  honored  rural  "tribus" 
to  one  of  the  four  "tribus"  of  the  city:  Mommsen,  II,  p.  384. 

5  According  to  the  Ovinian  "  Plebiscitum  "  (442  a.u.)  the  power  of  the 
Censors  was  extended  to  drawing  up  the  Ust  of  members  of  the  Senate. 
Mommsen,  "Staatsrecht",  II,  p.  397. 

^  For  an  ample  statement  of  the  different  cases,  see  Jarcke,  pp.  16  et 
seq.,  and  Mommsen,  II,  pp.  364  et  seq. 

24 


Chapter  I]  THE   ROMAN   LAW  [§  8 

legal  proceedings,"  which  we  at  the  present  time  would  consider 
as  not  entirely  unimportant.  A  man  also  became  "  infamis  " 
when  judgment  was  passed  against  him  as  defendant,  in  an  "  actio 
furti",  "  actio  injuriarum",  "  actio  fiduciaria",  or  any  of  the  fol- 
lowing "actiones",  viz.,  "pro  socio",  "  tutelse ",  "  mandati ", 
and  "  depositi  "  ("  directa  ").^  An  insolvent  whose  goods  were 
seized  and  sold  by  his  creditors  by  virtue  of  a  "  missio  in  bona  " 
became  "  infamis."  Infamy  also  resulted  from  actions  in  tort, 
in  which  the  defendant  avoided  the  passing  of  judgment  against 
him  by  the  payment  of  money.  There  were  also  a  few  cases, 
which  we  would  treat  as  crimes,  to  which  infamy  ^  was  the  immedi- 
ate and  unfortunate,  but  only  consequence.^'^ 

"  Actiones  Populäres."  —  The  "  actiones  populäres  "  "  also  con- 
stituted a  later  suj^plement  to  the  criminal  law.  In  these  actions, 
a  private  person,  by  means  of  a  civil  procedure,  laid  claim  to  a 
money  penalty  which  he  received  if  the  action  was  successful.^- 
These  cases,^^  as  far  as  we  have  record  of  them,  were  founded,  for 
the  most  part,  upon  the  Edict  of  the  Praetor;  they  generally 
dealt  with  matters  which  in  modern  times  are  subject  to  the  police 
jurisdiction,  or  else  had  to  do  with  injuries  caused  by  negligence.^'* 

Thus,  liability  to  an  "  actio  popularis  "  was  incurred  \)y  nnitila- 
tion  of  the  Edict  of  the  Praetor  which  was  posted  in  a  public 
place,  by  the  killing  or  injuring  of  a  man  with  something  thrown 
out  of  a  building,  by  the  unauthorized  erection  of  structures  in  a 
public  place  or  way.  Violation  of  graves,  etc.  was  also  thus  penal- 
ized. 

In  a  certain  sense,  the  severe  civil  law  obligation  to  make  com- 
pensation e.g.  for  injury  to  another's  slave,  in  accordance  with  the 

^  In  respect  to  the  capacity  to  be  represented  by  others  before  a  court 
or  to  represent  others  before  a  court.  In  certain  cases  incapacity  to  be 
a  witness  also  resulted.      L.  21  pr.  D.  "De  testibus",  22,  .5. 

^  L.  ()  §7.  D.  "De  his  qui  notantur  infainia",  3,  2.  "Contrario 
judicio  damnatus  non  erit  infamis  :  nee  inuneriti),  nam  in  contrariis  non 
de  perfidia  a^tus,  sed  de  calculo  qui  fere  judicio  soU't  dirimi." 

^  If  one  appointed  an  agent,  the  effects  of  infamy  wi-re  avoided  :  L.  (i 
§  2.  D.  3,  2.  For  this  reason  it  was  impractical  under  the  later  law  :  cf. 
Savigni/,  "System  des  röm.  Rechts",  II,  p.  175. 

'"  lie  also  became  "infamis",  "qui  bina  sponsalia,  binasve  nuptias  in 
eodem  tempore  habuerit." 

"  The  time  when  the  "Actiones  populäres"  originated  is  not  e.xaetly 
known. 

1-  [C/.  the  "Penal  Actions"  of  the  English  Law  which  were  so  popular 
with  Parliament  in  the  early  1800  s.  — Tkansl.] 

'•^  As  to  the  individual  cases,  cf.  Waller,  II,  §802;    Rudorff,  II,  §  46. 

'^  ('/.  e.g.  concerning  injury  liy  wild  animals  which  were  kept  near  the 
pubhc  highways,  L.  40-42  D.  "De  anlil.  edicto",  21,  1. 

25 


§  9]  ROMAN    AND    GERMANIC    ELEMENTS  [Part  I,  TiTLE  I 

Lex  Aquilia,  and,  generally,  the  large  number  of  private  penalties 
of  the  civil  law,  may  be  regarded  as  supplementary  to  the  criminal 
law. 

§  9.  Other  Criminal  Legislation  of  the  Republic.  —  The  other 
criminal  legislation  of  the  Republic  —  except  that  of  the  last 
period  —  has  for  us  little  of  interest.  During  the  aristocratic 
period  of  the  Republic,  crimes  against  private  persons  —  "  quum 
et  res  et  cupiditates  minores  ",  as  Cicero  says,^  were  seldom  com- 
mitted by  persons  who  were  "  sui  juris."  ^  As  a  result,  substan- 
tially the  only  penal  provisions  were  those  against  infringement 
of  the  rights  of  the  Plebs,  violation  of  the  right  of  appeal  to  the 
people  ("  provocatio  "),  ^  hindering  the  election  of  the  Tribunes 
of  the  people,^  and  the  infliction  of  corporal  punishment  upon 
Roman  citizens  by  a  magistrate.^  There  were  also  statutes  for 
the  protection  of  public  and  political  rights,  and  further  laws 
against  luxury  ("  leges  sumptuariae  ")  ®  as  continuations  of  the 
provisions  laid  down  by  the  Twelve  Tables. 

The  Statutes  of  the  Later  Republic.  —  The  series  of  later  stat- 
utes, which  for  us  are  of  more  importance,  begins  with  the  criminal 
statutes  against  the  abuses  ("  excess  ")  "^  of  the  magistrates  in 
the  provinces.  The  "  Lex  Calpurnia  repetundarum  "  (605  a.u.) 
established  a  commission  to  investigate  and  decide  complaints 
relating  to  these  abuses  and  became  the  model  for  a  whole  series 
of  such  statutes ;  which,  after  Sulla,  began  also  to  deal  with  other 

1  Cicero,  "Fragm.  pro  TuUio,  §9." 

2  Cicero,  1.  c.  "ut  perraro  fieret,  ut  homo  occideretiir,  idque  nefarium 
ac  singulare  faeinus  putaretur,  nihil  opus  fuisse  judicio  de  vi  coaetis 
armatisque  hominibus." 

'  Thus,  soon  after  the  overthrow  of  the  Decemviri,  the  "Lex  Duilia 
ne  quis  ullum  magistratum  sine  provocatione  erearet ;  qui  creasset  eum 
jus  fasque  occidi,  neve  ea  caedes  capitalis  noxse  haberetur."  Livy,  III, 
54,  55. 

■*  "Qui  plebem  sine  tribunis  reliquisset."  Livy,  III,  55  ("Lex  Duilia"). 

^  The  "Leges  Porciae"  (as  to  which,  see  Waller,  I,  §  104).  Livy,  X, 
9.  "Porcia  tamen  lex  sola  pro  tergo  civium  lata  videtur  quod  graA-i 
poena,  si  quis  verberasset  neeassetve  civem  Romanum,  saiixit."  La~ 
boulaye,  p.  94,  sees  in  the  "Lex  Porcia"  an  extension  of  the  " Lex  Valeria  ", 
for  the  protection  of  citizens  against  the  power  of  the  magistrates  in  the 
Provinces  (except  as  to  soldiers).     Cf.  Cicero,  II,  "In  Verrem",  V.  c.  55. 

^  Frequent  mention  is  made  of  the  "Lex  Oppia"  against  extravagance 
in  the  clothing  of  women  (539  a.u.)  and  the  "Leges  Orchia,  Dedia" 
("cibaria")  against  extravagance  in  banquets  (cf.  Walter,  I,  §.256; 
Rudorff,  I,  §  14  [p.  37]). 

'  Abuse  (Excesse)  also  in  the  sense  of  the  dishonorable  treatment  of  a 
Roman  citizen.  Thus  a  "Lex  Sempronia"  ("Ne  de  capite  civium  in- 
jussu  populi  quaereretur.  — •  Si  quis  magistratus  judicio  quem  circum- 
venerit,  de  ejus  capite  populi  esse  animadversionem") ;  Cicero,  "Cati- 
lina",  IV,  5;    Laboulaye,  p.  213. 

26 


Chapter  I]  THE   ROMAN  LAW  [§  9 

than  political  crimes.  The  immediate  practical  consequence  of 
most  of  these  statutes  was  felt  in  matters  of  procedure  rather 
than  in  the  substantive  law.  This  was  the  more  so,  since  the 
judges,  adhering  to  the  traditions  of  the  sovereign  assembly  in 
whose  place  they  sat  in  judgment,  often  rested  their  decision  not 
so  much  upon  the  specific  act  as  upon  the  character  and  disposi- 
tion of  the  accused. 

That  extortions  ^  of  the  officials  in  the  provinces  should  require 
a  vigorous  suppression  at  the  hands  of  the  Senate,  that  the  guilty 
should  be  compelled  to  return  the  extorted  sums,  and  that  the 
tribunes  of  the  people  should  propose  to  the  people  the  infliction 
of  a  fine  ("  multa  "),  were  nothing  new.^  But,  hitherto,  an  investi- 
gation would  ensue  only  upon  a  special  petition,  or  when  a  tribune 
might  feel  himself  called  upon  to  intervene.  Now  the  new  statute 
granted  the  right  to  proceedings  upon  the  complaint  of  an  accuser, 
and  created  for  such  cases  a  strictly  regulated  procedure  before 
a  special  tribunal  of  judges,  an  expedient  which  to  some  extent 
guaranteed  a  stricter  observance  of  law  than  in  the  sovereign 
assembly  itself. 

This,  of  itself,  led  indirectly  to  an  enumeration  and  definition 
of  the  acts  liable  to  this  procedure.  Since  the  procedure  proved 
satisfactory,  this  class  of  statutes  began,  little  by  little, '°  to  include 
(at  least  in  part)  criminal  acts  which  were  directed  against  the 
rights  of  individuals.^^     The  constantly  sinking  level  of  morality 

*  In  close  relation  to  laws  against  extortion  are  the  laws  against  fraudu- 
lently obtaining  office  ("leges  ambitus"),  sale  and  purchase  of  votes  in 
an  election  to  a  public  office  which  in  turn  was  used  for  extortion  in  the 
provinces.  (Concerning  the  earlier  laws  see  Rudnrff,  1,  p.  80.)  Con- 
cerning the  "  Lex  Julia  peculatus '"  (appropriation  to  one's  own  use  of  public 
property)  enacted  presumably  by  Ctesar,  cf.  Rudorff,  I,  p.  91. 

8  Cf.  Laboulaye,  p.  192,  and  Mommsen,  II,  pp.  289  et  seq. 

^'^  The  important  "Leges  majestatis"  ("Lex  Appuleja  de  majestate 
minuta"  enacted  about  the  middle  of  the  seventh  century  of  the  city ; 
"Lex  Cornelia  majestatis",  673  .\.u.c. ;  "Lex  Julia  maj.",  708  a.u.c.) 
referred  originally  only  to  acts  of  the  magistrates  which  wore  prejudicial 
to  the  honor  or  paramount  riglits  of  the  "Populus  liomanus."  ('/. 
particularly  Cicero,  "  In  Pisonem  ",  21  (50)  :  "  Exire  do  provim-ia,  educere 
exercitum,  bellum  sua  sponte  gerere,  in  regnum  injussu  populi  ac  senatus 
accedere,  quum  plurimie  leges  veteres,  tum  lex  Cornelia  majestatis, 
Julia  de  pecuniis  repetundis  vetant."  Cf.  Laboulaye,  p.  207.  "Est 
majestas,  ut  Sulla  voluit,  ne  in  quemvis  impune  dedamare  liceret." 
Cicero,  "  Ep.  ad  div  ",  3,  11,  2.  The  "Lex  Julia  Ca^saris"  laid  the  founda- 
tion for  the  later  law ;  it  is  commented  upon  and  continued  in  the  Corpus 
Juris. 

"  Thus  the  "Lex  Cornelia  testamentaria"  ("numaria  ",  "de  falsis")  a 
general  statute  by  Sulla  dealing  with  forgery  (the  bribery  of  judges  was 
also  punished  thereunder:  Pauli.  Ree.  S.  V,  25  §  2)  ;  the  "Lex  Cornelia 
de  sicariis  et   veneficis "    (G91  a.u.c);    the  "Lex  Pompeja  de  vi"   (7U2 

27 


§  10]  ROMAN    AND    GERMANIC    ELEMENTS  [Pakt  I,  TiTLE  I 

made  neoessjiry  a  more  vifi^orous  suppression  of  erime.  Since  the 
later  judicial  practice  treated  the  cases  subjected  to  punishment 
by  these  statutes  only  as  examples,  and  imposed  its  own  fjunish- 
ment  "  ad  exemplum  legis  "/-  one  may  see  in  these  statutes,  to  a 
certain  extent  (as  already  remarked),  the  skeleton  of  the  later 
criminal  law. 

§  10.  Punishment  in  Statutes  of  Later  Republic.  Opposition 
to  Death  Penalty.  —  The  nature  of  the  system  of  punishment  in 
these  statutes  is  peculiar. 

The  old  punishment  of  "  sacer  esse ",  although  reverenced 
because  of  its  antiquity  and  entitled  to  moral  respect,  had,  from 
the  juristic  viewpoint,  come  to  be  a  meaningless  formula.  Some 
exception  may  be  made  for  those  cases  in  which  it  was  considered 
justifiable  to  proclaim  one  as  the  enemy  of  the  country,  and  as 
such  to  kill  him,  —  especially  cases  of  conspiring  or  attempting 
to  gain  the  power  of  king.  Judging  from  facts  that  are  extremely 
uncertain,  a  similar  and  meaningless  formula  was  contained  in 
the  above  mentioned  provisions  of  the  Twelve  Tables,  prescrib- 
ing the  death  penalty  for  the  disloyal  behavior  of  a  patron  toward 
his  clients.^  In  an  advanced  state  of  culture,  not  as  yet  given 
over  to  corruption,  the  permission  granted  to  the  general  public 
to  kill  some  one  as  a  punishment  was  quite  ineffective. 

But  against  the  introduction  of  the  death  penalty  into  the 
statutes  there  struggled  the  pride  of  the  "  Civis  Romanus." 
Foreign  kings  often  received  their  orders  from  the  Roman  magis- 
trate and  senator,  and  the  plain  citizen  who  cast  his  vote  in  the 
assembly  for  the  magistrates  and  whose  vote  was  solicited  by  the 
most  distinguished,  felt  himself  in  turn  a  ruler,  and  a  participant 
in  the  "  Majestas  populi  Romani."  Yet,  as  is  well  known,  on 
extraordinary  occasions  the  blood  of  citizens  was  shed  freely. 
The  disturbances  of  the  Gracchi  and  the  proscriptions  in  the  civil 
wars  were  outside  the  domain  of  the  criminal  law.  Also,  in  the 
provinces,  Roman  citizens  were  "  de  facto  "  deprived  of  their 
goods  and  lives  by  violent  and  wicked  magistrates  in  the  most 
shameful  manner.  One  has  only  to  think  of  the  atrocities  which 
Cicero    (with    good    reason)    attributed    to    Verres.     Numerous 

A.u.c.)  and  the  "Lex  Julia  de  vi"  (708  a.u.c.)  continued  in  the  "de  vi 
privata"  under  Augustus. 

'-  CJ.  e.g.  L.  7,  §.  3  D.  "Ad  leg.  Jul.  maj.",  48,  4r  "si  non  tale  sit  delic- 
tum quod  vel  ex  scriptura  legis  deseendit,  vel  ad  exemplum  legis  vin- 
dieandum  est."     L.  3  D.  "Ad  leg.  Pomp,  de  parrieidiis  ",  48,  9. 

*  Cf.  also,  Padeletti,  p.  77,  who  infers  an  express  prohibition  in  the 
Twelve  Tables  against  the  killing  of  a  man  without  trial  and  judgment. 

28 


Chapter  I]  THE  ROMAN  LAW  [§  10 

executions  resulted  from  the  proceedings  of  the  Senate  against 
the  Bacchantes  -  and  against  the  practice  of  poisoning  which  was 
prevalent  among  the  lioman  women/^  Even  the  killing  of  the 
followers  of  Catiline  at  the  command  of  the  Senate  could  be  re- 
garded as  a  deed  not  entirely  without  color  of  law.^  But  the 
thought  of  the  death  penalty  and  the  executioner  seemed  unworthy 
of  the  name  of  Roman.  In  extraordinary  cases  these  things  might 
be,  but  their  mention  in  a  statute  of  the  later  Republic  was  an 
impossibility.  "  Carnifex  et  obductio  capitis  et  nomen  ipsum 
crucis  abest  non  modo  a  corpore  civium  Romanorum,  sed  etiam 
a  cogitatione,  oculis,  auribus.  Harum  enim  omnium  rerum  .  .  . 
etiam  exspectatio,  mentio  ipsa  .  .  .  indigna  cive  Romano  atque 
homine  libero  est."  ^  For  purely  political  offenses,  and  for  abuse 
of  public  office,  deprivation  of  political  rights,^  e.g.  deprivation  of 
the  right  to  vote,  was  very  effective.  The  "  Aquae  et  ignis 
interdictio  ",  the  prohibition  of  the  use  of  fire  or  water  upon  his 
native  soil,  i.e.  exile,'^  could  destroy  the  political  existence  of  the 
accused,^  wdiile  the  inffiction  of  exorbitant  fines  ^  could  destroy 
his  economic  existence.  But  one  wonders  how  such  punishments 
could  be  deemed  sufficient  in  the  case  of  ordinary  {i.e.  other  than 
political)  crimes. ^'^  In  the  later  Republic,  murder  for  hire  and 
poisoning  were  practised  almost  as  regular  professions."  Even 
the  killing  of  parents  was  not  unusual.^-    Since  the  accused  had 

2  Livy,  XXXIX,  18. 

3  Livy,  VIII,  18  and  XL,  37. 

*  Cf.  Nissen,  pp.  32  et  seq. 

^  Cicero,  "Pro  Rabirio",  c.  5  (§  16). 

*  Cf.  e.g.  Diocass.,  XXXVI,  21,  concerning  the  punishment  of  "am- 
bitus." 

^"Exilium  hoc  est  aqua?  et  ignis  interdictio."  L.  2  D.  "de  publ. 
jud."  48,  1.  According  to  the  "Lex  Tullia",  ten  years  exile  was  fixed 
as  a  punishment  for  "aml)itus."     Cicero,  "Pro  Murena,"  c.  41  (§  89). 

**  Since  it  was  only  in  Rome  that  poHtical  hfe  existed. ' 

'  Cf.  relative  to  the  gi-adually  increased  penalties  for  extortion  in  the 
Provinces,  Lahoulnye,  p.  239. 

'"The  punishment  provided  in  the  "Lex  Cornelia  de  sieariis"  was 
originally  merely  banishment.     Cicero,  "Pro  Cluentio,"  c.  71. 

"  Cf.Gengler,  "Die  straf rechthche  Lehre  des  Verbrechens  der  Ver- 
giftung", I  (1842),  pp.  40  et  seq.  Ilenriot,  II,  pp.  104  et  seq.  Cicero, 
"De  nat.  D.",  III,  c.  30  (§74)  " — hiec  qiiotidimuv,  sicae,  veneni,  pecu- 
latus,  testamentorum  etiam  lege  nova  qmestiones." 

'-  Ilenriot,  II,  p.  179.  This  may  be  inferred  from  the  frequent  mention 
by  the  poets  of  the  killing  of  fathers  and  the  motive  of  desire  to  obtain 
the  paternal  possessions.  However  this  may  have  been  fiirlhcred  l)y 
the  extreme  extent  of  the  "patria  potestas."  The  "Lex  Pomiieja  de 
parricidiis"  subjected  "parricidium"  to  the  penalties  of  the  "Lex  Cor- 
nelia de  sieariis."  L.  1  D.  48,  9.  The  ancient  "poena  culei,"  which 
was  reestablished  in  the  Empire,  stood  in  the  way  of  a  sentence  in  the 
Later  Republic. 

29 


§  11]  liüMAN   AND   GERMANIC   ELEMENTS  [Part  I,  Title  I 

the  right  to  avoid  the  passing  of  any  sentence  by  voluntary  exile, ''^ 
and  since  this  in  no  way  prevented  him  from  living  in  the  place  of 
his  choice  and  there  enjoying  in  safety  and  comfort  the  fruits  of 
his  crime/^  it  was,  as  if,  in  the  case  of  the  common  class  of  criminals, 
who  did  not  place  a  high  value  on  residence  at  Rome  and  political 
rights,  special  care  had  been  taken  to  secure  their  immunity  from 
punishment.  More  than  a  sentence  to  any  definite  punishment, 
the  accused  had  often  to  fear  the  enmity  of  the  multitude,  or  the 
political  opponent  who,  arousing  that  enmity  by  an  accusation, 
used  it  for  purposes  of  violence.  It  was  thus,  for  example,  that 
Clodius  brought  about  the  plundering  and  burning  of  Cicero's 
home.  Consequently,  it  often  happened  that  the  actual  facts 
causing  the  conviction  were  considered,  rather  than  its  technical 
basis.  Thus,  for  example,  the  complaint  against  ^'erres,  who 
caused  innocent  Roman  citizens  to  be  executed  in  the  place  of 
captured  pirates,  so  as  to  make  a  good  profit  from  the  latter's 
ransom,  was  instituted,  not  on  the  grounds  of  this  revolting 
murder,  but  rather  on  the  technical  grounds  of  extortion  —  the 
revolting  facts  of  the  case  serving  only,  as  we  would  say,  "  pro- 
coloranda  causa."  ^'^ 

§  11.  Gradual  Change  in  the  Character  of  the  Criminal  Law.  — ■ 
In  spite  of  this  mild  and  aristocratic  character  of  the  criminal 
law  which  favored  the  criminal  at  the  expense  of  public  safety, 
we  already  find  unmistakable  evidence  of  those  elements  which 
characterized  the  sudden  reversal  in  the  character  of  the  criminal 
law  which  came  with  the  beginning  of  the  Empire. 

"  Exile  originally  was  not  a  punishment,  but  rather  a  means  to  escape 
punishment.  Cicero,  "Pro  Csecina  ",  c.  34  (§  100).  However,  voluntary 
exile  could  take  place  in  accordance  with  the  expression  "Ei  justum  esse 
exilium",  and  therewith  interdiction  from  fire  and  water  and  loss  of  all 
legal  rights  in  the  native  country.  Livy,  XXV,  4 ;  XXVI,  .3.  Cf.  as  to 
voluntary  exile,  Geib,  " Geschichte  des  röm.  Criminal  processes",  pp.  120 
et  seq.,  p.  304.  In  Greece,  also,  there  was  originally  a  voluntary  departure 
of  the  worst  criminals.  The  individual  could  sever  the  tie  which  united 
him  to  the  community,  and  thereupon  the  rights  of  the  latter  in  regard 
to  him  came  to  an  end.  In  other  ways,  in  ancient  times,  the  effects  of 
exile  were  often  quite  severe. 
^*  Juvenal,  "Sat."  I,  1,  48. 

" —  et  his  damnatus  inani 
judicio  —  quid  enim  salvis  infamia  numis?  — 
exul  ab  octava  ISIarius  bibit  et  fruitur  dis 
iratis  — " 
Cf.   also   Suetotdus,   "Div.  Jul.",   e.   42:     "Pcenas  facinorum    (.Juhus 
Csesar)  auxit ;    et  quum  locupletes  eo  facilius  scelere  se  obligarent,  quod 
integris  patrimoniis  exulabant,  parricidas,  ut  Cicero  scribit,  bonis  omnibus, 
reliquos  dimidia  parte  multabat." 

15  Cicero,  "In  Verrem"  (A.  II)  V,  c.  27  (§  69). 

30 


Chapter  I]  THE  ROMAN  law  [§  11 

In  the  first  place,  the  Roman  citizen,  wlio,  at  home,  enjoyed 
such  extensive  protection  against  arbitrary  action  of  the  magis- 
trate, as  a  soldier  in  the  field  was  subject,  in  matters  of  discipline, 
to  the  discretion  of  the  commander  or  his  lieutenant,  which  was 
legally  without  restraint.  At  such  times  there  could  be  inflicted 
upon  him  the  severest  penalties  of  life  and  limb.^  Until  the 
Sempronian  Statutes  (031  a.u.),  there  could  be  no  appeal 
against  the  official  act  of  a  magistrate  "  militiae  "  even  by  those 
who  were  not  soldiers.-  It  is  always  difficult  for  a  conquest- 
seeking  military  system,  which  is  naturally  adverse  to  being  gov- 
erned by  laws,  to  preserve  free  institutions.  In  Rome  the  de 
facto  committal  to  the  emperor  of  the  powers  of  comman<ler-in- 
chief  carried  a  grant  of  that  convenient  form  of  absolute  criminal 
power  (within  the  city)  which  had  already  come  into  existence 
during  the  civil  wars.'^ 

In  the  next  place,  another  analogy  already  existed.  At 
an  earlier  period,  while  slaves  were,  as  a  matter  of  fact, 
leniently  treated,  it  had  not  only  become  customary  for  their 
masters  to  torture  and  kill  them  for  offenses,  but  they  were 
also  liable  to  a  particularly  atrocious  court  procedure,  in  which, 
presumably,  a  leading  part  was  played  by  the  accusation  of  the 
master.^  Such  an  inequality  in  the  treatment  of  human  beings 
must  also  in  the  long  run  work  to  the  prejudice  of  the  privileged 
class.  As  a  result  of  the  daily  spectacle  of  public  flogging  and  of 
cruel  executions  (by  crucifixion,  for  which  there  was  an  especial 
place  by  the  Esquiline  Gate)  '  the  idea  gradually  became  familiar 
that  in  place  of  the  ordinary  penal  method,  which,  in  the  later 
Republic,  was  bound  to  hold  itself  passive  as  against  the  person  of  a 
citizen  and  could  only  indirectly  compel  him  to  go  into  exile,  it  was 
feasible  to  proceed  actively  and  directly  against  the  person  of  the 
offender.^ 

As  a  matter  of  fact,  the  ancient  exile,  by  which  one  could  axoid 
further  punishment,  ceased  in  the  time  of  the  Empire  to  be  rcall\- 
a  punishment  for  the  great  majority  of  people  ("  inane  judicium  ", 

>  Cutting  off  of  the  hand  (Val.  Max.  II.  7-11)  ;  orucifixion  (Livy,  XXX, 
43).      Cf.  Du  Boys,  p.  449. 

2  Mnmmscn,  "  Staatsrecht  ",  I,  pp.  65  ei  seq.  II,  p.  110. 

'  Cf.  Xissen,  pp.  140  el  seq.  Respect  for  the  city  l)oin\(hiry  did  not 
last  long  in  the  Empire. 

■•  Cf.  Dil  Boys,  pp.  4.5G  et  seq. 

5  Val.  Max.  VIII,  4,  2. 

^  This  difference  is  correctly  pointed  out  in  Von  Holtzcndorff,  "De- 
portationstrafe", p.  00. 

31 


§  12]  ROMAN    AND    GERMANIC    ELEMENTS  [Paut  I,  TiTLE  I 

Juvenal  calls  it)."  TiKler  the  all-embracing  power  of  the  emperor, 
political  rights  and  political  activity  were  no  longer  objects  of 
consideration,  and  had  come  to  be  merely  things  to  be  played  with 
or  else  were  completely  abandoned.  At  the  most  one  was  merely 
deprived  of  the  special  pleasures  of  Rome  (which  to  be  sure  was 
a  real  grief  for  those  of  a  sensitive  disposition  and  those  who  loved 
the  atmosphere  of  the  capital). 

In  the  cases  of  grave  crimes,  which  were  becoming  more  fre- 
quent even  among  the  highest  classes,^  the  emperors  increased 
the  penalties.®  In  this,  they  were  acting  in  accord  with  popular 
sentiment.  One  can  understand  the  indifference  of  the  people 
to  the  shameful  acts  of  murder  by  tyrants  such  as  Tiberius,  Calig- 
ula, and  Nero.  For  it  is  difficult  for  those  who  stand  at  a  dis- 
tance to  distinguish  between  guilt  and  innocence ;  and  the  people 
had  become  accustomed  to  feel  that  there  was  nothing  extraordi- 
nary in  the  commission  of  crimes  by  members  of  the  highest  class.^** 

§  12.  Change  in  the  Character  of  Exile  as  a  Punishment.  — 
The  first  punishment  wdiich  underw^ent  a  legal  change  was  that 
of  exile.  (The  numerous  death  penalties  inflicted  by  the  emper- 
ors are  often  difficult  to  distinguish  from  plain  murder ;  they 
could  at  least  be  condoned  as  the  slaying  of  an  enemy  of  the 
country,  since  the  emperor  might  be  regarded  as  the  personifica- 
tion of  the  "  Populus  Romanus.") 

Exile,  in  the  time  of  Augustus,  might  be  relegation  {"  relegatio  ")/ 
i.e.  either  banishment  to  a  certain  place  or  banishment  with  the 
prohibition  to  come  within  a  certain  radius.-     Exile  also,  in  so 

7  "Sat.",  I,  1,  47,  48. 

^  Murder  by  poisoning  was  prevalent,  e.g.  the  manner  in  which  the 
notorious  Lueusta,  the  helpmate  of  Nero,  was  able  to  openly  engage  in 
the  business  (Suetonius,  "Nero,"  33). 

"  Cf.  note  14,  §  10,  ante. 

^°  Women  of  the  upper  classes  sj^stematically  practised  abortion  so 
as  to  retain  their  attractiveness  and  beauty  (Juvenal,  "Sat."  VI,  594, 
.595).  Ordinary  theft  appears  to  have  been  not  uncommon  among  the 
higher  classes  ("honestiores,"  when  stealing  as  common  thieves  in  the 
public  baths  are  called  "fures  balnearii"  in  L.  1  D.  "de  fur.  bain.",  47, 
17.  "Principales  ci\dtatis"  are  mentioned  as  the  originators  or  par- 
ticipators in  "  latroeinium "  in  L.  27  §  2  D.  48,  19).  L.  1  D.  (Ulpian) 
"De  effractoribus",  47,  18  speaks  of  the  punishment  imposed  upon  cer- 
tain "honestiores"  who  were  "expilatores."  §  2  of  the  same  speaks  of  a 
Roman  Knight  as  "effractor"  (under  Marcus  Aurelius)  and  L.  10  §  1  D. 
"Ad  leg.  Jul.  pec",  48,  13  speaks  of  the  robbery  of  a  temple  -nith  great 
temerity  and  cunning  by  a  "juvenis  clarissimus."  Hadrian  provided  a 
special  punishment  for  "  splendidiores "  for  interference  with  boundaries, 
L.  2  D.  47,  21. 

'  Cf.  Von  HoUzendorff,  pp.  28  et  seq. 

^  No  one  who  was  interdicted  from  fire  and  water  was  permitted  to 

32 


Chapter  I]  THE    ROMAN   LAW  (§  12 

far  as  the  imperial  power  itself  undertook  the  compulsory  trans- 
portation of  the  accused,  might  be  deportation  ("  deportatio  "),^ 
—  a  term  which  in  the  beginning  meant  merely  the  fact  of  the 
compulsory  transportation,  but  later  assumed  the  technical 
meaning  of  a  form  of  relegation  for  life  ^  to  some  fixed  local- 
ity, and  with  more  serious  consequences.  These  consequences 
were,  at  first,  fixed  at  the  discretion  of  the  emperor,  who 
sentenced  to  deportation  and  relegation  political  criminals 
and  those  who  figured  as  such.  Not  until  later  were  they  more 
definitely  fixed  by  the  jurists.  The  individual  who  underwent 
relegation  did  not  lose  his  citizenship  ("  civitas  ")  or  right  of 
making  a  will  or  being  a  beneficiary  under  a  will  ("testamenti 
factio  ")•  Also,  if  he  was  banished  only  for  a  certain  period,^ 
he  did  not  have  to  suffer  even  a  partial  loss  of  his  j)roperty. 
But  the  individual  undergoing  deportation  ^  lost  his  citizenship 
("civitas")  and  all  rights  therewith  connected,^  and  his  prop- 
erty was  confiscated.^  In  both  punishments  the  place  of 
banishment  ^  was  determined  by  the  discretion  or  despotism 
of  the  emperor. 

Deportation  might  be  made  to  places  where  life  was  quite 
tolerable;  but  use  was  also  made  of  desert  islands,  where  the 
offender  had  in  prospect  a  speedy  death. ^°     There  were  also  those 

betake  himself  to  the  continent  nor  to  any  island  which  was  less  than 
öOOOü  paces  from  the  mainland  (Cos,  Rliodes,  Sardinia,  and  Lesbos  ex- 
cepted).    Cf.  Von  Holtzendorff,  p.  31,  Note  5. 

*  Von  Holtzendorff,  pp.  40  et  seq. 

*  Only  imperial  favor  could  grant  a  "restitution."  Sometimes  hope 
of  tliis  was  expressly  taken  away  ("  Irrevocabile  exilium";  cf.  e.g.  L.  14 
§  3  D.  "de  sacros.  ecclesiis  ",  1,  2).  Cf.  Von  Holtzendorff,  p._  28.  The 
practical  importance  of  this  addition,  which  Von  Holtzendorff  seems  to 
have  missed,  was  that  the  local  governor  was  instructed  not  to  forward 
the  eon\ict's  requests  for  pardon  and  the  like.  Cf.  L.  un.  C  "De  Xili 
aggeribus  ",  I,  9,  38. 

5  L.  7  §§  3  4  D.  "De  interdietis  ",  48,  22. 

^  The  dishonorable  element  of  the  punishment  of  deportation  is  ap- 
parent, since  it  was  contrarj'  to  the  viewpoint  of  the  Republic,  that  there 
should  l)c  no  direct  personal  coercion  in  punishment.  Cf.  Von  Holtzen- 
dorff, p.  GO. 

'  He  who  had  been  deported,  retained  the  rights  of  the  "Jus  gentium/' 

*  They  allowed  to  the  condemned  only  the  so-called  "Pannicularia  ", 
certain  trinkets  and  articles  of  clothing  \cf.  the  Rescript  of  Hadrian  in 
L.  G  D.  "De  bonis  damnatorem  ",  48,  20),  his  children  (except  in  "lese 
majeste"),  and  a  portion  of  the  property.  For  particulars,  cf.  Von 
Holtzendorff,  pp.  79  et  seq. 

»  In  Egypt,  deportation  was  to  an  oasis  in  the  desert:  L.  7  §  ö  "  De 
interdietis  et  relegatis  ",  48,  22. 

'"  The  island  rock  of  Gyaros,  one  of  the  Cyclades  in  the  ^-Egean  Sea, 
was  used  for  this  purpose,  as  it  was  lacking  in  water:  Tacilus,  "Annals", 
IV,  30.     Cf.  also  Juvenal,  "Sat.",  XIII,  24G. 

33 


§  12]  ROMAN    AND   GERMANIC    ELEMENTS  [Part  T,  Titlk  I 

secret  orders  to  kill,  to  whicli,  uiulcr  despotic  emperors,  the  ban- 
ished often  fell  a  victim." 

Increased  Use  of  Capital  Punishment.  —  In  the  frequent  death 
jx'iKilficfi  (primarily  for  actual  or  allejjjed  cases  of  "  lese  majeste"), 
the  despotism  of  the  emperors  '-  again  asserted  itself.  In  opposi- 
tion to  the  old  Roman  view,  which  regarded  capital  punishment 
merely  as  the  necessary  destruction  of  the  offender,  and  did  not 
regard  the  pains  of  death  as  essential,  there  began  under  Tiberius 
(Suetonius  points  this  out  as  something  remarkable)  efforts  to 
prevent  those  sentenced  to  death  from  suicide. ^"^  Soon  simple  and 
specially  devised  forms  of  capital  punishment  ^^  were  extended 
to  the  field  of  crimes  that  were  not  of  a  political  nature.  The 
ancient  punishment  of  "  culeus  ",  for  the  murder  of  parents,  was 
reestablished  under  the  early  Empire,  or  its  place  taken  by 
"  damnatio  ad  bestias."  ^^  In  other  cases  of  the  murder  of  near 
relatives,  the  simple  death  penalty  (decapitation)  was  used,'^ 
and  later,  this  was  also  applied  to  persons  of  the  lower  class,^*^ 
in  the  graver  cases  dealt  with  by  the  "  Lex  Cornelia  de  sicariis." 
The  peculiar  manner  in  which  the  Roman  criminal  law  grouped 
at  random  heterogeneous  cases  under  one  and  the  same  statute, 
(notably  where  later  by  "  Senatus  consulta  "  and  imperial  consti- 
tutions new  cases  were  brought  under  rules  of  criminal  law  already 
existing)  ^^  necessarily  made  capital  punishment  more  frequent. 
The  fact  that  crimes  often  required  a  vigorous  suppression  because 

"  The  soldiers  entrusted  \vith  the  escort  often  received  this  order  e.g. 
under  Tiberius  and  Caligula.     Cf.  Von  HoUzendorff,  p.  49. 

12  Cf.  the  fearful  description  of  the  reign  of  terror  under  Tiberius  in 
Suetonius,  "Tib.",  61. 

1^  Suetonius,  1.  c.  "Mori  volentibus  vis  adhibita  est\avendi."  Later, 
choice  of  a  special  kind  of  death  was  a  favor  granted  by  the  emperor. 
L.  8  §  1  D.  "De  poenis",  48,  19. 

"  Crucifixion  and  burning  alive,  sentence  to  gladiatorial  combat  or 
to  be  torn  to  pieces  by  wild  beasts  in  the  public  theatres  (methods  em- 
ployed for  persons  of  the  lower  class  as  well  as  slaves). 

">  L.  9  De.  "D  lege  Pompeja  de  parricid.",  48,  9.  The  punishment  of 
"culeus"  was  used  if  the  sea  was  near;  "alioquin  bestiis  objicitur  se- 
cundum Di\i  Hadriani  Constitutionem."     "  Culeus  "  was  a  leathern  bag. 

1"  Casting  off  of  high  rocks  or  drowning  in  the  Tiber  were  also  favorite 
methods  (rf.  Sueto7iius,  loa.  cit.),  but  were  later  forbidden  (L.  25  D. 
"De  poenis"  48,  19).  Strangling  in  prison  was  also  abolished.  Later 
they  sought  to  regulate  better  the  e.xecution  of  the  death  penalty. 

'^  L.  16  D.  "Ad  leg.  Corn,  de  sic.",  48,  8  (Modestinus).  It'may  per- 
haps be  inferred  from  L.  4  D.  eod.  that  as  early  as  Hadrian,  murder 
by  persons  of  lower  rank  entailed  the  death  penalty. 

'*  Thus,  by  a  Rescript  of  Hadrian,  castration  of  a  man,  or  allowing 
one's  self  to  be  castrated,  and  by  a  Rescript  of  Antoninus  Pius,  circum- 
cision of  one  who  was  not  a  Jew,  were  subjected  to  the  penalties  of  the 
"Lex  Cornelia  de  sicariis."     L.  4  §  2  D.  48,  8.     L.  11  D.  eod. 

34 


Chapter  I]  THE  ROMAN  LAW  [§  12 

of  the  boldness  ^^  with  which  they  were  perpetrated  has  alread\' 
been  mentioned.^"  It  is  possible  that  the  death  penalty  was  com- 
pulsory in  other  cases,  e.g.  in  the  graver  cases  of  counterfeiting.-^ 

Corporal  Punishment.  —  More  remarkable  than  the  death 
penalty  was  corporal  punishment^--  which,  in  the  Republic,  was 
never  applied  to  a  Roman  citizen,  and  in  the  Empire  was  estab- 
lished only  for  persons  of  lower  rank  ("  humiliores  ").  But, 
legally,  these  punishments  were  justifiable  by  the  universal 
nature  of  the  military  power  ("  Imperium  ")  of  the  emperor. 
As  a  matter  of  fact,  they  were  almost  indispensable  ^'^  in  dealing 
with  the  pauper  rabble  who  at  that  time  swarmed  to  the  great 
cities  and  especially  to  Rome.  Otherwise,  since  the  prevailing 
system  of  punishment  by  imj)risonment  was  inadequate,  it  woukl 
have  been  necessary  to  resort  to  mutilation  as  a  penalty. 

Imprisonment.  —  The  Romans  also  made  use  of  imprisonment 
as  a  punishment.  But  it  was  not  based  upon  the  principle  which 
alone  is  productive  of  results  —  the  thought  that,  by  a  temporary 
deprivation  of  freedom  as  a  punishment,  the  offender  may  be 
influenced  to  a  more  sensible  use  of  his  freedom  when  again 
attained.     This    idea    had,    indeed,    been    expressed    by    Plato,-^ 

"Armed  " Grassatores "  (robbers)  were  upon  a  repetition  of  tlie  of- 
fense punished  mth  death.  Cf.  L.  28  §  10  D.  48,  19.  Malicious  in- 
cendiarism was  frequent,  e.g.  in  Rome,  often  to  make  an  effective  appeal 
to  charity  (somewhat  as  to-day  it  is  done  to  get  fire-insurance  money). 
Cf.  Henriot,  II,  p.  15G.  Concerning  shameless  and  fraudulent  bankrupt- 
cies, see  Henriot,  II,  pp.  150  et  seq. 

2«  "Famosos  latrones  —  fiu-ca  figcndos,  compluribus  placuit."  L.  28 
§  15  D.  "De  pcpnis,"  48,  19.  Malicious  setting  of  fires  "in  civitate" 
by  a  "humilior"  was  subject  to  the  punishment  of  "bestiis  ol)jici." 
L.  12  §  1  D.  "De  incendio",  47,  9.  According  to  L.  28  §  12  D.  "De 
poenis"  (Callistratus)  it  was  punislied  by  burning  alive.  Concerning 
man-stealers,  who  made  a  business  of  stealing  children  and  selling  them 
into  slavery,  cf.  L.  7  C.  "Ad  leg.  Fabian."  9,  20,  (Diocletian)  and  L.  un. 
C.  9,  18  (Constantine). 

2'  Counterfeiting  of  gold  money  (L.  8  D.  "De  lege  Corn,  de  falsis", 
48,  10,  Ulpian).  As  is  well  known,  counterfeiting  was  later  treated 
in  conjunction  with  "lese  majeste."  L.  2  C.  "  De  falsa  moneta",  9,  24 
(Constantine). 

2-  This,  consisting  at  the  most  in  whipping  with  a  cane  ("fustigatio"') 
is  frequently  mentioned.  Cf.  especially  L.  8  §§3-5  D.  "De  pienis", 
48,  19.  In  addition  to  \vhipj)ing  with  a  cane,  there  were,  under  the  later 
emperors,  whipping  with  birches  ("\nrga3"),  with  lashes  and  knouts 
("flagellum ").  Balls  of  lead  were  later  also  woven  into  the  knout 
("plumba")  (cf.  e.g.  L.  1  C.  "De  his  qui  potentiorum  nomine",  2,  1_5) 
(Arcadius  and  Honorius)  and  thorns  ("scorpio").  Cf.  Inveniizzi,  p.  173. 
Fauly,  "  Realencyklopiulie,"  VI,  p.  24()(). 

*ä  Concerning  corporal  punishment  as  an  additional  punishment  in 
cases  of  "Relegatio",  s(>nt(Mice  to  "Opus  publicum",  and  "ad  nu'talla", 
cf.  L.  4  §  1  D.  "De  incendio",  47,  9. 

^^  His  "Sophronisterion"    ("Legg.",    IX,  908)   is  in  its  fundamental 

35 


§  12]  ROMAN   AND   GERMANIC    ELEMENTS  [Part  I,  Title  I 

who  in  this  respect  was  in  advance  of  his  time.  However,  gen- 
erally speaking  it  remained  unknown  to  the  prevailing  opinions 
of  ancient  times.  Ulpian  did  not  regard  imprisonment  primarily 
as  a  means  of  punishment.  Thus  in  L.  8  §  9  D.  "  De  poenis", 
48,  19,  he  says  :  "  Career  ad  continendos  homines,  non  puniendos 
haberi  debet."  The  rescript  of  the  emperor  Antoninus  in  L.  6  C. 
"  De  poenis",  9,  47,  reads  as  follows  :  "  Incredibile  est  quod  allegas, 
liberum  hominem,  ut  vinculis  perpetuo  contineretur,  esse  damna- 
tum."  -*'  But  in  the  Empire  imprisonment  sometimes  served  as  a 
punishment  of  short  duration  -'  for  petty  offenses,  and  also  for 
cases  in  which,  for  the  sake  of  the  public  peace,  the  temporary 
absence  and  safe  keeping  of  the  offender  -^  was  desirable.-^ 

Hard  Labor.  —  INIoreover,  since  it  was  customary  to  punish 
slaves  by  hard  labor,  and  since  the  lowest  class  of  freemen  were 
in  reality  little  more  respected  than  were  slaves,  by  the  all-power- 
ful imperial  officials,  the  idea  easily  arose  of  making  use  of  the  toil 
of  convicted  persons  in  the  great  works  which  were  being  under- 
taken by  the  State.  This  idea  was  perhaps  furthered  by  an  ac- 
quaintance with  the  custom  of  States  annexed  to  Rome."°  Thus 
even  Pliny  the  Younger  ^^  speaks  of  the  employment  of  convicts 
in  public  work  ("  opus  publicum  "),  such  as  cleaning  sewers,  mend- 
ing the  highways,  and  working  in  the  public  baths.  A  severer 
type  of  this  kind  of  punishment  was  a  sentence  "  ad  metalla  " 
—  labor  in  the  mines  —  and  "in  opus  metalu."  The  convicts 
in  each  of  these  instances  wore  chains,  and  as  "  servi  poense  " 
lost  their  freedom.  For  this  reason  the  punishment  was  always 
for  life.'^-  Heavier  chains  were  worn  by  those  sentenced  "  ad 
metalla  "  than  by  those  sentenced  "  in  opus  metalli."  "'     These 

ideal  the  theory  of  reformation  of  the  1800s.  Cf.  Thonissen,  "Droit 
penal  de  la  republique  Athenienne",  pp.  439  et  seq. 

^^  However  the  passage  speaks  of  the  use  by  the  governors  of  chains 
in  the  prisons,  of  which  the  jurists  approved. 

*'  As  appears  at  the  conclusion  of  the  passage,  this  was  not  unheard  of 
in  the  case  of  slaves.  Slaves  and  persons  of  the  lower  class  were  often 
actually  (though  perhaps  not  legally)  treated  alike.  Cf.  also:  Invernizzir 
pp.  173  et  seq.,  and  Henriot,  II,  pp."  361  et  seq. 

-ä  Imprisonment  as  a  means  of  prevention  was  originally  limited  by 
statute  to  the  term  of  office  of  the  magistrate  who  inflicted  it.  '  Cf.  Momm- 
seti,  "Rom.  Staatr.",  II,  pp.  149,  529,  530. 

2"  Cf.  L.  8  §  9  D.  "De  poenis  ",  48,  19.  As  to  the  use  of  imprisonment 
in  Athens,  see  Thonissen,  "Le  droit  penal."  p.  114. 

^°  We  also  find  among  the  Egyptians  sentences  to  labor  in  the  mines. 
Thonissen,  "Etudes  sur  I'histoire  du  droit  criminel  des  peuples  anciens" 
(Paris,  1869),  1,  pp.  157  et  seq. 

5'  Ep.  ad  Traj.  X,  41. 

32  Cf.  Rescript  of  Hadrian  in  L.  28  §  6  D.  "De  poenis",  48,  19. 

33  L.  8  §  6  D.  "De  poenis  ",  48,  19. 

36 


Chapter  I]  THE  ROMAN  LAW  [§13 

punishments  were  popularly  regarded  as  sentences  to  a  slow  and 
painful  death.^^  The  treatment  of  these  prisoners  must  have 
been  very  severe ;  ^^  according  to  the  rescript  of  Hadrian,  sentence 
to  gladiatorial  combat  ("  ad  ludum  "),  where,  if  the  chance  so 
turned,  a  man  might  become  free,  was  regarded  as  a  lighter  pen- 
alty .'^^  ^lention  is  also  made  of  another  kind  of  penal  labor ; 
younger  persons  were  used  e.g.  in  the  hunting  sports  in  the  circus 
or  as  dancers,  especially  as  sword  dancers  in  the  public  theatres.^^ 
Often  some  temporary  need  was  served ;  thus,  Constantine,  in 
the  year  a.d.  319,  ordered  the  governor  of  Sardinia  to  cause  to  be 
sent  to  Rome  those  convicted  for  minor  offenses ;  there  they  were 
employed  in  the  grist  mills.  The  "  constitutio  "  which  originated 
this  "  damnatio  in  pistrinam  urbis  Romae  "  was  often  renewed;'^^ 

Other  Methods  of  Punishment.  —  The  other  principal  methods 
of  punishment  of  the  time  consisted  of  denial  of  the  right  to  carry 
on  a  trade,^^  declaration  of  incapacity  for  holding  public  office  "'^ 
(or  perhaps  only  some  public  offices),  degradation  from  a  higher 
rank,"*^  and  money  fines ;  these,  in  the  Republic  might  be  imposed 
e.g.  on  the  complaint  "  de  residuis  "  (failure  to  account  for,  and 
especially  misapplication  of  public  funds),  and  also  under  some 
circumstances  in  cases  of  peculation. '- 

§  13.  Infamy  and  Confiscation  of  Property.  —  Infamy  ("  in- 
famia  ")  and  confiscation  of  property  were  in  the  nature  of  supple- 
mentary punishments.  The  former,  even  in  the  Empire,  continued 
to  be  of  considerable  significance.  The  "  infamis  "  could  not 
(or  to  speak  more  accurately,  was  not  entitled  to)  be  appointed 

3*  Cf.  Henriot,  II,  p.  357. 

3'  Women,  who  were  considered  unsuited  for  this  severe  labor,  were 
sentenced  in  like  cases  to  "  ministerium  metallicorum",  i.e.  to  servo  those 
sentenced  to  work  in  the  mines.  Such  a  sentence  could  also  be  hmited 
in  regard  to  its  duration.  L.  8  §  8  D.  "De  poenis."  If  anyone  was  ill 
or  weak  and  had  undergone  ten  years  of  his  sentence,  it  was  provided 
that  he  could  be  turned  over  to  his  relatives  for  care.  L.  22  D.  "Do 
poenis." 

30  "  Collatio  legum  Mosaic."  XI,  7  §§  3,  4  (Ulpian). 

3^  L.  8  §  11  D.  "De  pcxjnis."  The  condemned  were  also  in  these 
cases  "Servi  Poemc." 

38  L.  3,  5,  6  C.  Theodos.  "De  poenis  ",  9,  40. 

39  L.  8  pr. ;    L.  9  §  10 ;    L.  43  pr.  D.  "  De  poenis  ",  48,  19. 

^o  L.  5  §  2  D.  "De  extraord.  cogn.",  50,  13.  L.  7  §§  21,  22  D.  "Do 
interdictis  et  releg.",  48,  22.  There  is  also  mention  of  a  temporary  su.s- 
pension  of  such  rights  [cf.  L.  7  §20  D.  "De  interd.  et  releg.").  This 
doubtless  was  the  (sase,  since  even  according  to  our  modern  conception 
such  punishments  are  regarded  as  disciplinary. 

^'  Concerning  loss  of  rank  of  Dccurian,  cf.  L.  43  §  1  D.  "De  pamis." 
In  other  respects  distinctions  in  rank  were  very  important  in  criminal 
law  and  procedure. 

*2  Cf.  Walter,  II,  §  813. 

37 


§  13]  ROMAN    AND    GERMANIC    ELEMENTS  [Part  I,  TiTLE  I 

to  a  public  office.^  Confiscation  of  property,  either  of  all  property, 
as  incidental  to  every  death  sentence,-  or  of  a  portion  only,  as 
often  incidental ''  to  e.g.  relegation  for  life,  had,  at  Rome,  under 
despotic  emperors  attained  to  a  considerable  importance.  It 
differed  however,  from  the  custom  of  confiscating  property  at 
Athens  '  under  the  power  of  the  people  dominated  by  demagogues. 
In  addition  to  the  desire  for  personal  revenge  and  the  gratification 
of  tyrannical  whims,  there  was  also,  under  bad  emperors,  the  addi- 
tional temptation  to  enrich  the  imperial  treasury  ("  fiscus  "), 
if  the  prosecution  of  a  man  of  means  was  in  question.  Moreover, 
not  to  mention  the  numerous  profits  accruing  to  self-seeking 
officials  from  the  sale  of  confiscated  property,  the  bounties  ^ 
awarded  for  incriminating  information  ("  denunciatio  ")  pro- 
duced the  well-known  pest  of  the  spy- system.  Relations  of  con- 
fidence and  trust,  made  sacred  by  custom  and  religion,  were  dis- 
solved by  the  influence  of  this  poison.  The  severity  with  which 
it  was  found  necessary  to  prosecute  the  making  of  unfounded 
informations  and  complaints,  and  the  extortions  thereby  made 
possible,  were  prejudicial  to  legal  procedure.  The  higher  the 
stakes  for  which  the  accuser  or  informer  played,  the  less  scrupulous 
would  be  his  choice  of  the  means  to  carry  the  case  to  a  successful 
conclusion,  and  the  more  prone  would  he  be  to  attempt  to  bribe 
witnesses  and  judges.®  The  fact  that  the  profession  of  informer 
soon  came  to  be  regarded  as  actually  infamous  {i.e.  causing 
"  infamia  "),^  and  that  accusations  ^  of  slaves  and  freedmen 
against  patrons  were  not  tolerated,^  together  with  the  fact  that  the 

1  Thus  Savigny,  "System  des  röm.  R.",  II,  pp.  201,  202  in  relation  to 
L.  2  C.  "De  dign."  12,  1.  Cf.  however,  L.  2  D.  "De  off.  assessorum", 
1,  22.  It  is  doubtful  if  infamy  "ipso  jure"  entailed  the  loss  of  an  ofiiee 
already  acquired.  This  was  not  the  case  in  the  Empire,  since  the  emperor 
and  his  legal  representatives  could  deprive  one  of  an  office  as  a  matter  of 
discipline.  The  additional  effect  of  infamy  relative  to  appearance  before 
a  court  need  not  here  be  considered. 

2  C/.  Geib,  I,  p.  115.     L.  8  §§  1-4  D.  "Qui  testamenta",  28,  1. 

3  Cf.  e.g.  Paulus,  "Sententiae  Receptae",  II,  26,  §14;  V,  25,  §  8. 

''  Cf.  Thonissen,  "Droit  penal",  p.  123.  If  the  State  treasury  was 
empty  or  in  need,  prosecutions  were  instituted. 

*  Cf.  e.g.  L.  1,  "De  his  quaB  ut  indignis",  34,  9. 

^  It  would  also  happen  that  the  accused  would  bribe  the  accuser.  As 
to  such  a  bribery  see  L.  29  pr.  D.  "De  jure  fisci",  49,  14. 

'  L.  1  D.  34,  9;  L.  2  pr. ;  L.  44  D.  "De  jure  fisci",  49,  14.  An  ac- 
cusation which  was  not  made  for  the  sake  of  gain  was  not  a  cause  of 
"infamia." 

*  Concerning  such  accusers  ("delatores")  cf.  especially  Platner,  pp. 
170  et  seq. ;    Rein,  p.  814  ;    Rudorff,  II,  p.  460. 

^  Such  accusers  became  liable  to  punishment  under  a  "Constitutio'* 
of  Severus.      L.  2  §  6  D.  "De  jure  fisci."     Some  of  the  reasons  for  re- 

38 


Chapter  I]  THE  ROMAN  LAW  [§14 

good  emperors,  especially  Titus,  Trajan,  and  Hadrian,  proceeded 
with  the  greatest  severity  against  the  "  humani  generis  inimici  ", 
the  "  execranda  delatorum  pernicies  ",  tended  to  the  suppression 
of  the  evil.  Nevertheless,  in  the  case  of  the  accusations  most 
dangerous  in  these  respects,  viz.  accusations  of  the  crime  of  "  lese 
majeste  ",  ^'^  the  regard  for  the  sacred  person  of  the  "  princeps  " 
and  emperor  easily  outweighed  all  other  considerations  and  pre- 
vented the  evil  from  being  plucked  up  by  the  root. 

§  14.  The  Range  of  Criminal  Law.  —  Concerning  the  range  of 
the  acts  for  whicli  punishment  was  inflicted,  there  can,  however, 
be  no  question  but  that  prior  to  the  end  of  the  classical  jurists' 
period  (except  in  the  case  of  the  crime  of  "  lese  majeste  "  and  the 
persecution  of  Christians)  the  criminal  law  itself  did  not  go  beyond 
the  limits  of  real  necessity,"^  even  though  these  limits  w'ere  often 
transgressed  by  imperial  despotism/)  Law  tended  to  develop 
more  along  the  line  of  the  protection  of  private  rights  and  morality. 
*^The  "  Lex  Julia  de  adulteriis  "  in  the  time  of  Augustus  (a.u. 
736)  was  in  these  respects  an  interesting  innovation.  Its  purpose 
was,  by  means  of  severe  penalties,  to  check  the  increasing  preva- 
lence of  immorality,  —  adultery  (of  which  the  husband  as  sucli 
could  not  be  guilty),  illicit  relations  of  men  with  married  women 
and  with  their  own  sex,  pandering,  and  marriage  and  concul)inage 
among  near  relations.  This  statute  was  peculiar,  in  that  the 
general  public  was  made  the  guardian  of  the  morality  and  honor 
of  the  family.  As  opposed  to  the  police  power  of  the  State,  in- 
jury to  individual  rights  and  the  interest  of  the  family  stepped  into 
the  background.  While  the  right  of  the  husband  and  father  of 
the  married  woman  to  bring  this  complaint  was  favored,  it  was 
not  exclusive.^     After  a  certain  lapse  of  time,  a  complaint  could 

jecting  such  accusations  rested  partly  upon  the  grounds  that  the  persons 
accused,  if  members  of  a  high  rank,  should  not  be  brought  to  a  trial, 
and  partly  upon  the  grounds  that  the  accusers  had  shown  themselves 
especially  dangerous,  e.g.  accusations  by  one  condemned  "ad  metalla", 
"ne  desperati  ad  delationem  facile  possint  sine  causa  confugere."  L.  18 
§  3  D.  "De  jure  fisci." 

1"  In  these  cases,  a  slave  was  permitted  to  accuse  his  master.  Cf. 
L.  6;   L.  8  §  6  C.  "De  delat.",  10,  11. 

'  In  this  respect,  there  may  be  considered  the  weakening  of  the  family- 
tie,  and  the  granting  of  Roman  citizenship  to  a  poverty-stricken  multi- 
tude. The  criminal  power  of  the  State  was  obliged  to  take  the  place  of 
the  disciplinary  power  of  the  head  of  the  household  and  the  "nota  cen- 
soria"  which  being  no  longer  of  importance  soon  died  out  in  the  Empire. 
However  the  power  of  the  head  of  the  household  was  yet  often  e.xercised 
in  respect  to  married  women  in  the  early  Empire. 

2  L.  4  D.  "De  adulteriis",  48,  5. 

39 


§  14]  ROMAN   AND    GERMANIC    ELEMENTS  [Pakt  I,  TiTLE  I 

be  brou^lit  h\'  uii\'  tliird  party.''  Moreover,  the  husband  was 
punishable  as  a  panck'rcr  ("  lenocinium  ")  if  he  failed  to  bring 
a  charge  against  his  wife  if  apprehended  "  in  flagrante."  It  was 
only  in  a  depraved  state  of  society  that  provisions  such  as  these, 
prejudicial  to  the  peace  of  the  family  and  conducive  to  extortions,'* 
could  be  considered  advantageous.  The  possibility  of  punish- 
ment for  "  lenocinium  "  (as  appears  from  L.  8  and  9,  I).  "  De 
adulteriis  ")  goes  far  beyond  the  limits  within  which,  at  the  pres- 
ent time,  the  interference  of  the  criminal  law  or  of  the  police  is 
deemed  justifiable. 

The  later  extensions  by  imperial  constitutions,  senatusconsulta, 
and  juflicial  practice,^  of  the  "  Leges  Julise  de  vi  "  are  more  directly 
intended  for  the  protection  of  private  rights.^  The  same  is  true 
of  the  punishment  for  swindling  ("  stellionatus  ").''  It  is  also 
important  to  notice  that  by  this  time  theft  ("  furtum  ")  in  many 
cases  was  subjected  to  a  public  punishment,  unconditionally, 
in  the  interest  of  public  security.^  In  all  cases  in  which  there  was 
a  theft  of  a  thing  itself  ("  furtum  rei  "),  and  not  merely  a  theft 
of  its  use  ("  furtum  usus  ")  or  its  possession  ("  furtum  posses- 
sionis "),  public  punishment  could  ensue  upon  motion  of  the  party 
injured ;  ^  and  this  was  generally  the  practice.  "  INIeminisse 
oportebat,  nunc  furti  plerumque  criminaliter  agi."  This  was  the 
only  means  by  which  theft  could  be  held  in  check,  "  quia  visum  est 

3  Nevertheless  it  is  conceivable  that  there  frequently  were  no  accusers. 
Suetonius,  "Tiberius",  35. 

^  Concerning  abuse  of  the  right  of  accusation,  cf.  L.  18  (17)  a.  E.D. 
"De  adulteriis",  48,  5. 

'  Cf.  e.g.  L.  1  §  2  D.  "De  vi  privata",  48,  7;  L.  6  D.  eod. ;  L.  5  §  2; 
L.  6  D.  "De  vi  publica",  48,  6 ;  L.  152  D.  "De  R.  J.",  50,  17:  "Hoc 
jure  utimur,  ut  quicquid  omnino  per  \'im  fit  aut  in  vis  publieae  aut  in 
vis  privatte  crimen  invidat." 

8  The  above-mentioned  pro\ision  against  castration  was  rather  in  th-e 
natm-e  of  legislation  for  purposes  of  morality.  Concerning  the  punish- 
ment of  abortion  by  a  married  woman,  cf.  L.  4  D.  "De  extraord.  erimin.", 
47,  11. 

^  Peculiar  cases  of  fraud  were :  the  so-called  "  Venditio  fumi",  swindling 
through  a  pretense  to  be  able  to  procure  for  the  defrauded  party  a  position 
of  lionor  {cf.  Rein,  p.  723) ;  also  the  case  where  a  free  man  fraudulently 
allowed  himself  to  be  sold  as  a  slave.  (L.  7  §  1 ;  L.  14,  IS  D.  "De  lib. 
causa",  40,  12;  L.  5  §  1  D.  "De  statu  horn.",  1,  5.  In  this  latter  case 
the  party  who  permitted  himself  to  be  sold  lost  his  freedom  as  a  punish- 
ment, if  he  was  over  twenty-five  years  of  age. 

*  Thus  "furtum"  of  "abactores",  "directarii",  "effractores"  and 
" saccularii " ;  also  "fures  nocturni",  "fures  balnearii."  Receipt  of 
stolen  goods  was  punished  as  a  special  olTense  ;  cf.  Tit.  D.  "De  receptat.", 
47,  16. 

^  The  injured  party  could  choose  between  a  ci\il  action  and  punish- 
ment of  the  theft  "extra  ordinem"  :  L.  93  D.  "De  furtis"  ;  L.  3  §  1  D. 
"De  off.  prtef.  \-iguum",  1,  15;   L.  15  D.  12,  4. 

40 


Chapter  I]  THE   ROMAN   LAW  [§  15 

temeritatem  agentium  etiani  extraonlinaria  coj^nitione  coercen- 
(1am. "  ^°  The  general  tendency  of  legal  development  was  as 
follows :  Torts  and  wrongs  which  merely  rendered  their  author 
liable  to  an  accusation  in  a  popular  assembly  tended  to  become 
crimes,  and,  as  such,  to  be  subject  to  criminal  punishments,  or, 
at  any  rate,  might  be  treated  as  crimes  at  the  discretion  of  the 
magistrate  or  of  the  injured  party. ^^  This  tendency  was  in  part 
based  upon  the  natural  order  of  development  of  criminal  law. 
In  Rome  it  was  also  furthered  by  the  sovereign  power  of  the  offi- 
cials and  by  the  prevalence  of  a  poverty-stricken  proletariat. 

Attempt  at  a  crime  was  punished  by  some  special  method  of 
I)rocedure  or  under  the  head  of  some  other  crime,  rather  than  by 
\irtue  of  a  general  statutory  provision  or  in  pursuance  of  some 
definitely  expressed  principle.  Accessories  to  a  crime  were  pun- 
ished in  about  the  same  extent  as  at  the  present  time.  Bearing 
these  two  facts  in  mind,  it  can  perhaps  be  said  that,  at  the  time  of 
the  classical  jurists,  the  range  of  criminal  law  covered  very  nearly 
(but  not  exactly)  ^^  the  field  of  wrongs  punishable  criminally  under 
the  early  German  common  law. 

Little  by  little,  negligence  ("  culpa  ")  (regard  for  which  was 
originally  foreign  to  the  public  penal  law)  also  became  liable 
to  punishment,  particularly  in  cases  of  homicide  and  starting  of 
fires.^^ 

§  15.  The  Crime  of  "Lese  Majeste."  —  The  crime  of  "lese 
majeste  "  proved  very  important  in  the  practical  administration 
of  criminal  law.  The  interests  of  the  State  are  naturally  suscep- 
tible to  injuries  in  many  ways.  These  injuries  may  have  a  very 
considerable  influence  upon  the  fate  of  the  State ;  for  the  State 
is  not  a  thing  definite  and  well  defined,  but  to  a  certain  extent 
may  be  conceived  as  existing  at  the  same  moment  everywhere 
and  nowhere.  Therefore  laws  in  regard  to  high  treason  and  State 
treason  easily  assume  an  indefinite  character.     There  is  in  such 

"  L.  93  D.  "Do  furtis"  (Ulpian). 

"Concerning  insult  ("injuri:r"),  cf.  L.  ult.  D.  "De  injur.",  47,  10 
(Ilermogenian) ;  also  e.g.  L.  3  §  7  D.  "De  sepulcro  viol."  47.  12;  L.  1 
pr.  §  1  L.  5  D.  "De  e.xtraord.  erim."  47,  11 ;    L.  3.5  D.  "De  injuriis." 

'^  Some  differences  are  :  e.g.  according  to  the  "  Lex  Cornelia  de  sicariis", 
many  acts  are  punishable  which  are  not  punishable  even  as  preparatory 
acts ;  violations  of  the  person  were  punishable  according  to  Roman  law 
only  when  they  were  "injuria?"  and  only  when  done  with  malice  ("do- 
lose"); offenses  against  morality  were  not  identical  with  those  of  the 
present  time. 

>'  L.  3  §  1  D.  1,  15;  L.  4  §  1  D.  "Ad  leg.  Corn,  de  sic."  48,  8;  L.  6 
§7D.  "De  off.  prsES."  1,  18. 

41 


§  15]  ROMAN   AND    GERMANIC    ELEMENTS  [Part  I,  TlTLE  I 

cases  much  that  is  less  capable  of  beinf;^  expressed  by  words  than 
determined  by  the  exercise  of  rational  discretion.  In  a  State  in 
which  the  ruler  is  absolute,  there  is  always  a  tendency  to  identify 
the  interests  of  the  rulers  with  the  interest  of  the  State.  It  be- 
comes easy  to  ascribe  to  any  act,  which  in  fact  is  contran,'  to  the 
real  or  presumed  interests  of  the  ruler,^  the  character  of  harraful- 
ness  to  the  State.^  When  we  consider  the  absolute  power  of  the 
em{>eror ;  his  constant  use  of  it  to  interfere  in  the  administration 
of  law ;  more  important  still,  the  time-serving  attitude  which,  in 
every  absolute  government,  grows  with  overwhelming  vigor ; 
the  temptation  held  out  by  the  power  of  confiscation  for  treason ; 
and  the  procedure  wdiich,  in  the  interest  of  the  State  against  these 
presumed  enemies,  permits  the  important  guarantees  affording  pro- 
tection to  the  accused  to  be  set  aside,^  —  when  we  consider  these 
things,  we  need  no  further  explanation  of  those  murders  com- 
mitted by  Tiberius,  Caligula,  Nero,  and  Domitian  and  concealed 
under  accusations  of  "  lese  majeste."  Later,  in  the  compilations 
of  Justinian,  we  find  that  these  abuses  are  no  longer  given  legal 
recognition.^  But  the  utterances  of  the  jurists,  as  well  as  the 
imperial  rescripts  (directed  as  they  were  against  a  body  of  citizens 
presumably  timid  and  peace-loving),  reveal  what  must  have 
been  the  practice  of  those  despots  ^  and  of  their  over-zealous 
officials.^ 

1  Thus  "lese  majeste"  came  to  be  "omnium  actionum  complementum " 
{Tacitus,  "Annals",  III,  38),  the  crime  of  the  innocent  "crimen  illorum 
qui  crimine  vacarent."      {Pliny,  "Paneg.",  42.) 

2  Under  Tiberius  the  slander  of  the  emperor  began  to  be  treated  as 
"lese  majeste."  Previously  Augustus,  under  the  term  "Crimen 
majestatis",  had  caused  to  be  prosecuted  "libeUi  famosi"  which  made 
accusations  against  eminent  persons:  Tacitus,  "Annals",  I,  72.  Cf. 
Paulus,  "Sententiae  Receptse",  V,  29,  §  1. 

^  Persons  were  permitted  to  bring  the  charge,  whose  accusation, 
bearing  no  weight,  in  other  cases,  had  ceased  to  be  given  consideration. 
No  attention  was  paid  to  relations  of  trust,  etc.  (L.  7  pr.  §  2,  D.  "Ad  leg. 
Jul.  maj."  48,  4).  They  tortured  all  or  any  of  the  witnesses  whenever 
thej^  thought  any  purpose  would  be  served  thereby  (L.  10,  §  1,  D.  "De 
qusest."  48,  18;    Paulus,  "Sententiae  Receptee",  V,  29,  2). 

■*  Thus  Alarcian  feels  constrained  to  observe  that  the  repair  or  the 
unintentional  injury  of  the  statues  of  the  emperor  did  not  constitute 
"lese  majeste."  The  law  had  once  punished  as  "lese  majeste"  even  the 
removal  of  one's  clothes  or  the  chastisement  of  one's  slave  in  the  vicinity 
of  a  statue  of  the  Emperor :    Reitt,  pp.  533,  544. 

*  Cf.  L.  2,  C.  "Ad  leg.  Jul.  maj."  9,  8.  The  indi\adual  presenting 
the  matter  for  decision  had  sworn  by  the  spirit  of  the  emperor  that  he 
would  deal  harshly  A\äth  his  own  slave,  but  had  not  kept  his  oath.  Cf. 
concerning  the  punishment  of  false  oaths  in  which  an  appeal  was  made 
to  the  spirit  of  the  emperor.  Rein,  pp.  533,  534. 

^  Modestinus  in  L.  7  §  3  D.  48,  4,  gives  a  warning  to  over-zealoua 
officials. 

42 


Chapter  I]  THE  ROMAN  LAW  [§  16 

§  IG.  Persecution  of  the  Christians.  — The  persecution  of  the 
Christians  bore  a  certain  relation  to  the  punishment  of  the  crime 
of  "  lese  majeste."  This  persecution  can  be  explained  as  follows. 
A  State  which  makes  religion  an  instrument  to  accomplish  its 
own  ends,  as  Rome  had  done  from  the  beginning,  can  not  remain 
indifferent  to  the  intrusion  of  a  new  religion.  However,  it  does- 
not  persecute  a  new  cult  merely  as  such,  as  is  done  in  States  domi- 
nated by  a  priestcraft.  But  it  persecutes  the  new  cult  as  soon  as 
its  own  interest  seems  to  demand.  Thus  the  Roman  State  had 
always  exercised  its  right  to  proceed  against  any  cult  which 
seemed  especially  destructive  of  morality  or  generally  dangerous.^ 
An  example  is  furnished  by  the  decree  of  the  Senate  against  the 
fanatical  cult  of  the  Bacchantes  (a.u.c.  547).  There  is  recorded 
a  large  number  of  laws  against  the  cult  of  Isis  and  Serapis  and  the 
suppression  of  the  cult  fostered  in  Gaul  by  the  Druids.  As  appears 
from  the  general  sense  of  the  decree  against  the  Bacchantes,  it 
was  not  only  those  cults  which  manifested  themselves  publicly 
that  were  persecuted ;  Cicero  says,  expressing  the  spirit  of  the 
Roman  State  :  "  Separatim  nemo  habessit  deos  ;  neve  novos,  sive 
advenas,  nisi  publice  adscitos,  privatim  colunto."  Every  new  cult 
required,  as  it  were,  a  definite  license  from  the  State. 

Now  the  Christians,  prima  facie,  provoked  the  suspicion  and 
hatred  of  other  people  who  judged  by  what  they  saw.  They  sepa- 
rated themselves  from  their  fellow  citizens  ;  they  refused  to  attend 
the  public  festivals ;  they  offered  no  sacrifices  to  the  local  deities, 
and  refused  divine  homage  to  the  statues  of  the  emperors.  Thus 
they  exposed  themselves  to  blame  for  any  public  calamity ; 
for  the  people  were  accustomed  to  attribute  such  calamity  to  the 
wrath  of  the  neglected  local  deities.  It  was  also  alleged  that 
the  Christians,  like  the  adherents  and  participants  in  other  objec- 
tionable cults  and  mysteries,  in  their  secret  celebrations  revelled 
in  blood  and  sensuality.  Thus  they  came  to  be  regarded  as  guilty 
of  "  lese  majeste  ",  and,  finally,  even  as  "  publici  hostes."  " 

The  withdrawal  of  the  Christians  from  all  i)articipati()n  in  the 
affairs  of  the  heathen  State,  their  prophecies  concerning  the  judg- 
ment of  God  which  should  overwhelm  all  heathendom  and  the 
wickedness  of  the  age,  made  them  hated  by  many  leaders  in  politi- 

'  Cf.  Plainer,  p.  46  et  seq. 

2  Cf.  especially  Ebert,  "Tertullian's  Verhältniss  zu  Minutius  Felix" 
in  the  "  Historish-philolog.  Classe  der  Königl.  sächs.  Gesellschaft  der 
Wissonschaften  ",  Vol.  V,  N.  .5,  pp.  19  et  seq.  (pp.  337  et  seq.) ;  Hausratk, 
" Neutestamenlliche  Zeitgeseliichte",  III  (1874),  pp.  297  et  seq. 

43 


§  10)  ROMAN   AND    GERMANIC   ELEMENTS  [Pakt  1,  Title  I 

(•ill  affairs.  These  leaders,  althoiifi;h  tliey  iniffht  have  found  that 
Christianity  had  much  in  common  with  their  own  ideals  of  moral- 
ity, were  unable  to  contemplate  a  State  other  than  the  heathen 
State  as  it  then  existed.  To  such  men,  since  they  placed  their 
reliance  in  the  old  virtues  of  the  Republic  and  the  maxims  of  phi- 
losophy, a  foreign  sect  flocking  into  Rome,  behaving  in  an  ex- 
traordinary manner,  and  yet  reaching  such  a  position  as  to  win 
adherents  even  in  court  circles,  necessarily  appeared  dangerous. 
So,  from  the  very  first,  they  from  time  to  time  punished  the  Chris- 
tians as  "  rei  superstitionis  externse."  Thus  Suetonius  briefly 
and  without  a  trace  of  pity,  says :  "  iVfflicti  suppliciis  Christiani 
genus  hominum  superstitionis  novae  et  maleficse."  Tacitus  also, 
while  telling  of  the  Christians  burnt  at  Xero's  command  as  living 
torches  in  his  garden,  was  of  the  opinion  that  they  deserved  the 
severest  death  penalties.  He  found  fault  merely  with  the  fact  that 
their  death  appeared  to  be  inflicted  at  the  caprice  of  an  individual,^ 
rather  than  as  a  public  punishment  inflicted  for  the  well-being  of 
the  State.  When  Pliny  the  Younger,  who  was  unable  to  attribute 
any  special  crimes  to  the  Christians  but  nevertheless  considered 
them  dangerous,  wrote  to  Trajan  for  his  opinion,  the  emperor, 
desiring  no  doubt  to  act  in  accord  with  public  sentiment,  replied 
in  those  well-known  and  significant  words :  "  Conquirendi  non 
sunt;  si  deferantur  et  arguantur,  puniendi  sunt."  Their  prose- 
cution was  to  depend  upon  whether  or  not  anyone  pressed  a  charge 
against  them.  The  persecution  of  Christians  was  thereby  made 
legal,  w^henever  demanded  by  public  sentiment.  This  also  ex- 
plains the  peculiar  fact  that,  at  times,  protection  was  afforded  the 
Christians  and  their  doctrines  were  allowed  to  spread,  while,  at 
other  times,  when  the  interest  of  the  State  seemed  to  demand  it, 
they  were  suddenly  proceeded  against  with  frightful  severity. 

Undoubtedly  a  doctrine  such  as  that  of  the  Christians  could 
not  spread  without  arousing  hate  and  persecution.  But  the 
fact  that  this  persecution  took,  at  times,  so  systematic  a  form 
and  emanated  from  the  State,  was  only  possible  because,  first,  of 
inherent  faults  from  which  the  Roman  criminal  law  had  suffered 
from  the  beginning,  and  because,  secondly,  of  its  political  char- 
acter, which,  without  regard  to  the  injury  of  specific  rights,  derived 
its  conception  of  offenses  from  what  it  conceived  to  be  the  real  or 

^  "Quamquam  ad  versus  sontes  et  novissima  exempla  meritos  miseratio 
oriebatur,  tanquam  non  utilitate  publica,  sed  in  saevitiam  unius  absume- 
rentur":    Tacitus,  "Annals",  XV,  44. 

44 


Chapter  I]  THE   ROMAN   LAW  [§  18 

presumed  interests  of  the  State.  Defects  in  the  fundamental 
conception  of  law,  which  to  the  laity  are  difläcult  of  comprehension, 
have,  in  stormy  periods,  exercised  an  influence  upon  the  fate  of  a 
people. 

§  17.  Sorcery  and  Soothsasring.  —  The  crime  of  sorcery  and 
soothsaying  ^  is  also  closely  related  to  the  crime  of  belonging  to  a 
forbidden  cult.  Belief  in  the  power  of  special  incantations  to- 
gether with  the  sacrifice  of  victims  was  an  ancient  one  with  the 
Romans.  During  the  Republic,  public  calamities  were  attributed 
to  such  causes.  An  extraordinary  number  of  laws  were  enacted 
against  them,  e.g.  in  the  case  of  the  pestilence  occurring  in  the 
city  (320  A.U.C.),  and  during  the  Second  Punic  War  (541  a.u.c). 
During  the  Empire  there  was  an  invasion  of  superstitions  from 
the  Orient.  Mention  is  often  made  of  the  "  Chaldsei",  "  Arioli  ", 
"  Astrologi  ",  "  Mathematici  ",  and  "  Magi."  There  was  a  con- 
stant belief  in  the  power  of  witchcraft.  It  was  suspected  that 
Germanicus  lost  his  life  from  this  cause.^  There  is  also  frequent 
mention  of  love  potions  and  magic  formulas.  Sorcery  and  the 
mixing  of  poisons'^  were  frequently  associated."*  INIere  soothsay- 
ing was  not  severely  punished.  But  the  utterance  of  incantations 
concerning  the  life  of  the  emperor  and  the  consultation  of  a  sooth- 
sayer by  slaves  "  de  salute  domini  "  were  punished  with  death. 
Not  to  mention  the  frauds  which  were  frequently  perpetrated 
through  the  medium  of  magic,^  it  was  regarded  as  dangerous  in 
itself,  and  prophecies  concerning  the  approaching  death  of  the 
emperor  might  cause  public  tumult.  But,  since  even  the 
emperors  from  t'me  to  time  concerned  themselves  with  magic,^ 
and  among  the  mass  of  the  people  these  superstitions  gradually 
supplanted  the  old  State  religion,  it  was  impossible  to  actually 
curb  the  evil. 

§  IS.  General  Circumstances  Affecting  Imperial  Criminal  Law; 
(1)  Class  Privilege.  —  In  order  to  gain  a  proper  conception  of  the 
practical  operation  of  the  criminal  law  of  this  imperial  period,  the 
following  circumstances  must  be  borne   in   mind.     Against  the 

1  Cf.  Rein,  pp.  901  et  seq. ;     Plainer,  pp.  234  et  seq. 

^  Tacitus,  "Annals",  II,  69. 

^  Patilus,  "Sententia;  Reeeptae",  V,  23,  15;  L.  13,  D.  "Ad  leg. 
Corn,  de  sic",  48,  8.  Sorcery  for  good  purposes  was  permitted.  Charms 
for  good  purposes  were  much  used. 

*  Paidits,  "Sententiae  Reeeptae",  V,  23,  1.5. 

^  Swindling  done  by  jugglers  who  went  about  with  snakes  is  perhaps 
referred  to  in  L.  11,  D.  "De  extraord.  crim."  47,  11. 

«  Cf.  Plainer,  p.  237 ;    Rein,  p.  905. 

45 


§  18]  ROMAN   AND   GERMANIC    ELEMENTS  [Part  I,  Title  I 

powerful  infliuMK'os  of  the  commerce  of  the  world  pouring  into  Rome, 
the  large  property  interests  owned  by  freedmen  and  persons  occu- 
pied in  ignoble  callings,  and  the  absolute  power  of  the  emperor, 
the  old  Roman  freedom,  once  the  pride  of  the  citizen,  could  no 
longer  prevail.  But  the  emperors  felt  the  necessity  either  of  pre- 
serving established  legal  privileges  or  of  creating  new  ones  in  their 
stead.  Since,  in  reality,  it  was  only  the  Senate  who  retained  a 
semblance  of  political  rights,  these  privileges  must  be  made  to 
reveal  themselves  in  the  criminal  law.^  They  cost  the  emperor 
nothing,  and  they  also  enabled  him  to  interfere  constantly  in  the 
administration  of  the  law  by  the  governors  of  the  provinces,  and 
to  remind  them  and  their  underlings  of  their  subjection  to  the 
superior  power  of  their  emperor.-  Thus,  in  the  Digest,  under  the 
title  "  De  pcenis",  the  first  place  is  given  to  a  passage  from  Ul- 
pian,  in  which,  before  everything  else,  attention  is  called  to 
distinctions  of  rank  in  the  determination  of  punishments.  For 
the  higher  classes,^  relegation  and  deportation  were  the  regular 
penalties.  The  former  applied  to  substantially  the  same  classes 
of  cases  punishable  under  the  old  "  Leges  judiciorum  publicorum  "  ; 
the  latter  was  for  cases  covered  by  the  "  extra  ordinär  ia  coercitio." 
But  a  desire  to  aggravate  or  mitigate  the  penalty  would  cause 
individual  cases  to  be  shifted  from  one  group  to  another.^  The 
punishments  for  the  lower  classes  ("  humiliores  ")  were  the  death 
penalty,  condemnation  "  ad  metalla  "  or  to  "  opus  publicum  ", 
or  corporal  punishment.^     However,  in  the  case  of  crimes  against 

1  This  tendency  did  not  cease  completely  until  the  time  of  Marcus 
Aurelius  and  Alexander  Severus.  Under  despotic  emperors  such  as 
Nero,  Caligula,  and  Domitian,  capital  punishment  of  prominent  men 
was  very  frequent,  and  the  most  distinguished  men  of  the  State  might 
be  seen  laboring  in  penal  servitude  on  building  streets;  Von  Holtzendorff, 
p.  110. 

2  This  is  very  apparent  in  the  punishment  of  deportation,  which  was 
employed  against  those  of  higher  rank.  This  could  take  place  only  by 
virtue  of  an  imperial  confirmation  of  the  decree  of  the  governor  of  the 
province.  The  "prsefectus  urbi",  who  was  in  Rome  and  passed  judg- 
ment as  it  were,  under  the  eves  of  the  emperor,  had  authoritv  to  sentence 
to  deportation:    L.  2,  §§  1,  2,  "De  poenis",  48,  19. 

\  Senators,  Knights,  Decurions.  Apparently  other  persons  could  at 
judicial  discretion  be  treated  as  "honestiores."  Concerning  the  special 
privileges  of  veterans  and  their  children,  cf.  L.  3,  D.  "De  veteranis", 
49,  18;   cf.  especially  Vo7i  Holtzendorff,  p.  111. 

*  According  to  Hadi-ian's  regulation,  apart  from  cases  of  "lese  majeste", 
there  could  only  be  capital  punishment  in  cases  of  murder  of  parents: 
L.  15,  D.  "De  poenis." 

'"  L.  28,  §§  2,  9,  D.  "De  pcenis."  It  is  natural  that  many  errors  were 
committed  in  making  such  distinctions.  According  to  L.  10,  §  2,  D. 
"De  poenis",  corporal  punishment  unjustly  undergone  precluded  the 
statutory  "Infamia",  which  would  otherwise  ensue. 

46 


Chapter  I]  THE   ROMAN   LAW  [§  18 

the  emperor,  all  these  distinctions  Vcanished.  In  the  graver  eases 
of  "  lese  majeste  ",  individuals  of  any  rank  were  liable  to  the  death 
penalty ;  ^  generally,  deportation  was  deemed  a  sufficient  punish- 
ment for  those  of  the  highest  rank ;  but  upon  those  of  a  lower 
rank  ("  humiliores  "),  the  death  penalty  in  the  terrible  form  of 
"  bestiis  objici  "  was  inflicted. 

(2)  Administration  of  Justice  by  State  Officials.  —  Justice 
administered  by  officials,  which,  as  early  as  the  first  century  after 
Christ  had  completely  crowded  out  and  replaced  the  old  adjudi- 
cations of  the  people,  reminds  one  in  many  of  its  external  features 
of  criminal  justice  as  it  is  to-day  administered  in  the  larger  cities. 
"We  find,  as  shown  under  the  title  in  the  Digest,  "  De  custodia  et 
exhibitione  reorum  ",  an  extensive  and  precise  system  of  impris- 
onment, with  rules  for  the  transportation  of  prisoners,'  a  register L/^ 
of  previous  convictions,^  a  record  of  prisons,  and  regulations  to 
secure  the  humane  treatment  of  prisoners  held  pending  trial. 
The  accusatory  principle  of  procedure,  although  not  directly 
abolished,  tended  more  and  more  to  become  less  important  and  to 
lose  its  real  significance.^  It  was  the  duty  of  the  numerous  police 
officials  to  investigate  crimes,  and  in  their  official  capacity  to  in- 
stitute criminal  proceedings ;  the  officers  acting  as  magistrates 
were,  as  a  matter  of  fact,  the  absolute  masters  of  the  procedure. 

This  manner  of  administering  justice  under  the  absolute  power 
of  officials,  while  in  many  respects  preferable  to  the  old  adjudica- 
tions of  the  sworn  jurors,  which  were  liable  to  be  influenced  by 
corruption,  furthered  informal  and  arbitrary  methods,^"  and 
also  gave  rise  to  a  variety  of  abuses  on  the  part  of  the  superior 
officials  and  their  subordinates.^^ 

^  Paulus,  "Sententia;  Reeeptae",  V,  29,  §  1. 

'  L.  2,  C.  "De  exhibendis  et  transmit tendis  reis",  9,  3 ;  L.  .5,  C.  "De 
custodia  reorum",  9,  4. 

s  L.  11.  §  1,  D.  48,  :i;    L.  7,  D.  eod. 

^  [On  this  subject  of  procedure,  see  Mitlcrniaicrs  chapter  on  Roman 
procedure,  in  Esmein's  "History  of  Continental  (^riminal  Procedure" 
(1913,  transl.    Simpson,  in  the  present  Series).  —  Ed.] 

'"  As  shown,  e.g.  in  L.  18  §§  9,  10  D.  "De  qua'stiouibus",  48.  18.  The 
"Praeses  provincia?"  would  cause  the  prisoners  to  l)e  brought  before  liim 
in  large  numbers  from  the  prisons,  and  judgment  could  be  passed  im- 
mediat(>ly  upon  the  event.  The  passages  proviile  that  the  "Praises" 
should  give  notice  of  the  days  of  visitation  and  lu'aring,  so  that  the  ac- 
cused could  prepare  their  defensi'  and  iu)t  be  compU'tely  taken  unaware 
in  the  matter  of  proof.     Cf.  also  L.  12  D.  "De  publ.  jud.",  48,  1. 

"  Against  the  scandalous  abuses  of  the  subordinate  officials  and  their 
attempts  at  extortion  L.  1  C.  9,  4  (a.d.  320)  was  directed.  Concerning 
wrongful  judgments  and  corrupted  \vitnesses,  cf.  L.  18  §  G  D.  "De  adul- 
teriis",  48,  5. 

47 


§  IS]  ROMAN    AND    GERMANIC    ELEMENTS  [Pakt  I,  TiTLK  1 

Continued  Disregard  for  the  Criminal.  —  In  its  cliaii^L'(l  form, 
the  Roman  criminal  law  remained  trne  to  its  old  attitude  of  dis- 
regard for  the  party  who  was  sentenced.  As  in  ancient  Greece,'- 
so  in  Home  it  was  not  considered  worth  the  trouble  to  j^ive  empha- 
sis to  a  proper  relation  between  the  punishment  and  the  crime,  or 
to  gi\'e  much  thought  to  such  matters.  'yThere  is  here,  as  it  were, 
a  trace  of  the  old  manner  of  regarding  the  criminal  as  an  enemy 
of  the  State,  against  whom  one  may  resort  to  any  expedient. 
There  is  not  the  faintest  trace  of  the  idea  that  after  all  the  com- 
munity must  share  the  blame  for  the  crime.  Yet  the  Itoman 
criminal  law  of  the  classical  period  is  far  removed  from  that 
attitude  of  grim  self-satisfaction  which  is  encountered  in  the 
deliberate  aggravation  of  the  offender's  suffering,  which  later 
prevailed,  under  the  influence  of  theological  ideas,  from  the  latter 
part  of  the  Middle  Ages  until  the  1700  s.^"''  But  identical 
severe  penalties  were  applied  to  crimes  of  a  very  dift'erent  nature ; 
and  if  the  time  or  the  circumstances  made  it  necessary,  the  most 
terrible  sufferings  of  the  condemned  seemed  a  matter  of  small 
moment.  Thus  we  find  the  same  punishment  of  deportation 
inflicted  for  an  act  of  violence  wdiereby  no  injury  was  wrought, 
for  the  seduction  of  a  virgin,'^  and  also  for  a  murder  perpetrated 
by  use  of  poison.^"'  Anyone,  who,  without  authority,  e.g.  to  satisfy 
his  curiosity,  opened  or  read  the  testament  of  another  person  dur- 
ing his  lifetime  was  sentenced  to  deportation,^^  probably  "  ad 
metalla."  With  disregard  for  the  natural  instinct  of  liberty, 
they  did  not  hesitate  to  penalize  with  atrocious  additional  punish- 
ments attempts  of  prisoners  to  escape. ^^  If  a  crime  was  being 
frequently  committed  in  a  certain  locality,  the  punishment  could 

12  Q-  Thonissen's  comments  on  Plato's  philosophy  of  criminal  law : 
"Le  droit  penal  de  la  republique  Athenienne  ",  pp.  445  et  seq.  Con- 
cerning the  expressions  of  the  Greek  orators,  see  Thonissen,  p.  73. 

^■'  Cf.  e.g.  8,  §3,  D.  "De  poenis",  48,  19:  "Nee  ea  quidem  poena 
damnari  quem  oportet,  ut  verberibus  neeetur  vel  virgis  interimatur  nee 
tormentis."  Moreover,  the  barbarous  methods  of  capital  punishment 
which  were  used,  insofar  as  they  were  not  prescribed  by  the  arbitrary 
despotism  of  indi\adual  emperors  (see  Inrernizzi,  p.  177,  and  e.g.  Sue- 
tonius, as  to  such  cases  of  atrocious  punishment),  were  not  founded  so 
much  upon  an  attempt  to  give  pain  to  the  criminal  as  upon  religious  and 
other  motives,  e.g.  upon  the  ideal  of  a  certain  "talio"  or  retribution,  — 
e.g.  the  punishment  of  being  burnt  alive  for  arson. 

'••  According  to  L.  1  §  2  D.  "De  extraord.  crim."  47,  11.  there  could 
under  some  circumstances  be  capital  punishment  in  such  cases,  even  of 
the  "comites"  of  the  chief  offender. 

16  Cf.  Von  Holtzendorff,  p.  130. 

16  L.  38  §  7  D.  "De  poenis",  48,  19. 

"  L.  8  §  7  D.  "  De  poenis  ",  48,  19. 

48 


Chapter  1]  THE   ROMAN   LAW  [§  18 

be  increased,'^  according  to  Saturninus,  to  make  a  public  example. 
As  appears  from  the  persecution  of  the  Christians  and  especially 
from  the  famous  rescript  of  Trajan  above  mentioned,  when  the 
interests  of  the  State  were  in  question,  there  was  no  very  exact 
discrimination  between  guilt  and  imiocence.  Thus  a  decree  of 
the  Senate  passed  in  the  time  of  Nero  ])ro\ided  that  if  anyone 
suffered  a  \ioIent  death  at  the  hands  of  his  own  slaves,  even  those 
slaves  should  be  executed  who  were  freed  by  his  testament  ^^ 
and  who  were  kept  at  his  home ;  and  Tacitus,-"  while  he  makes 
mention  of  this,  sees  herein  nothing  out  of  the  ordinar\-.  "  Fac- 
tum est  senatus  consultum  ultioni  juxta  et  securitati."  Condem- 
nation to  death  in  the  gladiatorial  sports  or  by  exposure  to  wild 
beasts  in  the  public  theatres,  in  which  case  the  prisoner  was  often 
long  in  anguish  under  the  prospect  of  this  terrible  death,-'  are  other 
exam})l('s  of  this  sjmie  attitude  of  indifference. 

Reversion  to  More  Primitive  Conditions.  —  A  system  of  law, 
l)ossessed  of  these  characteristics,  was  always  in  danger  of  revert- 
ing to  its  condition  in  much  earlier  periods.  The  abnormal  devel- 
opment, which  we  have  noticed  {e.g.  in  the  crime  of  "  lese 
majeste  "),  the  prosecution  of  crimes  after  the  death  of  their 
author,  the  "  damnatio  memoriae  ",  and  the  punishment  inflicted 
upon  even  the  descendants  of  those  guilty  of  "  lese  majeste  ", 
—  all  these  are  not  to  be  attributed  solely  to  the  despotism  of 

18  L.  8  §  10  D.  "De  poenis",  48,  19. 

'"  The  large  numbers  of  slaves  in  Rome  must  often  have  appeared 
dangerous  enough  ;  that  the  slaves,  in  such  eases  as  the  above^  should 
all  be  put  to  death  was  an  old  custom:  Tacitus,  "Annals",  XIV,  42. 
Cf.  tit.  D.  "De  SCo.  Silaniano  et  Claudiano"  29,  5.  Those  slaves 
only  were  spared  who  could  prove  that  they  hastened  to  the  assistance 
of  their  master.  Even  Hadrian,  who  was  usually  mild  of  disposition, 
gave  a  rescrii>t  to  the  effect  that  a  female  slave,  who  (perhaps  from  as- 
tonishment or  fear)  had  not  called  for  help,  should  be  put  to  death  : 
L.  1,  §  28,  D.  29,  5. 

2»  Annals,  XII 1,  .T2. 

-^  Colattio  Leg.  Mosaic.  XI.  c.  7  §  4 :  "Ad  gladium  damnati'  confestim 
consumuntur  vel  certe  intra  annun  debent  consumi."  There  is  no  doubt 
that  the  provincial  magistrates  often  sought  to  add  lustre  to  the  theatre 
bv  bringing  large  numbers  of  condemned  persons  into  coml)at  with  lions, 
tigers,  etc."  It  was  against  this  abuse  tliat  the  prohibition  cotitained  in 
L.  :U,  §  1,  D.  "De  pcenis",  48,  19,  was  directed;  in  accordance  with 
which,  criminals  were  not  to  b(^  transported  from  ouv  jjrovince  to  another. 
Indeed,  it  is  stated  in  the  same  passage,  concerning  convicts  who  have 
distinguished  themselves  in  such  combats  and  have  for  the  time  being 
escaped  with  their  lives,  that  word  be  sent  to  the  Emperor,  if  there  can 
be  this  delav,  that  these  convicts  are  worthy  to  be  presented  before  the 
people  of  tlie  Citv  of  Rome!  Sometimes  the  spectators  desired  the  re- 
lease of  the  combatants  l)ecause  of  their  bravery  and  recklessness  of 
life.     But  the  provincial  nuigistrates  were  not  to  comply  with  such  desires. 

49 


§  19]  ROMAN   AND   GERMANIC   ELEMENTS  [Pakt  I,  Titli:  I 

the  emperors.  As  has  been  shown  })y  Mommsen,  there  were 
revived  during  the  Empire  many  of  the  fundamentals  of  the  old 
Roman  constitutional  law ;  and  the  same  result  could  well  take 
place  in  the  field  of  criminal  law. 

§  19.  Influence  of  the  Jurists.  —  This  method  of  administration 
of  justice  through  State  officials  made  possible  another  and  an 
entirely  distinct  influence,  exercised  by  judicial  practice.  Even 
the  imperial  officers  ought  not  in  theory  to  allow  themselves  to 
pass  their  own  judgment  either  upon  the  deed  or  upon  the  per- 
sonal merit  of  the  accused.  Neither  were  they  to  frame  the  pen- 
alties according  to  the  exigencies  of  general  public  policy.^  In 
theory  they  appeared  only  as  administrators  of  the  statutory  law, 
or  of  the  will  of  the  emperor  or  of  the  Senate,  which  had  the  same 
force  and  effect  as  a  statute.^  Nevertheless,  viewed  from  another 
angle,  the  jurisdiction  of  these  officials  did  go  further.  They  were 
not  (as  were  the  "  qusestiones  "  of  the  old  popular  courts)  lim- 
ited in  such  manner  that  they  could  only  take  cognizance  of  one 
certain  offense  and  decide  the  guilt  or  innocence  of  its  alleged 
author.^  They  investigated,  at  least  as  far  as  could  be  done  by 
official  proceedings,  the  facts  of  the  case  in  every  conceivable 
juristic  aspect,  and  their  authority  in  the  fixing  of  penalties  was 
very  extensive.'*  Penalties  were  sometimes  left  entirely  to  their 
discretion.  In  some  cases  they  could,  of  their  own  authority, 
even  impose  the  death  penalty ;  and  Ulpian  in  the  Digest,  under 
the  title  "De  poenis  ",  makes  the  general  statement:  "  Hodie 
licet  ei  qui  extra  ordinem  de  crimine  cognoscit  quam  vult  senten- 

^  "Semper  graves  et  sapientes  judices  in  rebus  jiidicandis,  quid  utilitas 
civitatis,  quid  communis  salus,  quid  reipublicae  tempora  poseerent, 
cogitaverunt "  :  Cicero,  "Pro  Flacco",  c.  39.  Cf.  herewith  Geib,  "Ge- 
schichte", p.  301.  The  latter,  however,  goes  too  far  in  speaking  of  the 
freedom  of  the  lay  judges  (jurymen)  from  being  bound  by  the  law,  and 
one  must  not  forget  that  very  often  Cicero  expresses  a  partizan  point 
of  \dew.  To  the  contrary,  cf.  Seegcr,  "Ueber  das  Verhältniss  der  Straf- 
rechtspflege zum  Gesetz  in  Zeitalter  Cicero's"  (1869). 

2  But  the  emperor  himself  and  the  senate,  when  passing  judgment  as 
magistrates,  did  indeed  consider  themselves  justified  in  exceeding  exist- 
ing laws  {cf.  Geib,  p.  657),  and  the  jurists  and  the  courts  constantly  as- 
sumed rather  a  wider  latitude  for  them  than  would  be  conceded  in  our 
times  {cf.  Savigny,  "System  des  röm.  Rechts",  I,  p.  300).  The  judges 
could  not  remit  a  sentence  when  once  it  had  been  passed.  The  right 
to  remit  sentences  remained  the  exclusive  prerogative  of  the  emperor 
(L.  27  pr.,  D.  48,  19). 

^  [On  all  these  terms  of  Roman  procedure,  consult  Mittermaier's  chapn 
ter  in  Esmein''s  "History  of  Continental  Criminal  Procedure"  (1913, 
in  this  Series).  —  Ed.] 

^  Cf.  Geib,  "Geschichte  des  röm.  Criminalprocess",  p.  660,  and  the 
authorities  there  given. 

50 


Chapter  I]  THE   ROMAN   LAW  [§  19 

tiam  ferre  vel  graviorem  vel  leviorem,  ita  tamen  ut  in  utroque 
modo  rationem  non  excedat."  Now  this  "  ratio  "  in  the  inflic- 
tion of  punishment  was  suppHed  by  the  judicial  law  embodied 
in  the  opinions  ("  consilium  ")  emanating  from  the  learned  jurists. 
In  spite  of  the  interference  of  the  absolute  power  of  the  emperor, 
in  spite  of  the  corrupt  fibre  of  the  officials  and  the  corrupt  human 
elements  with  which  it  had  to  deal,  the  jurists'  learning  performed 
its  task.  There  can  be  no  doubt  that  the  science  of  law  was  at 
this  time  a  real  force,  and  that  it  performed  its  labors  with  no 
low  degree  of  moral  sensibility.  "  Quae  facta  laedunt  pietatem, 
existimationem,  verecundiam  nostram  et  ut  generaliter  dicam 
contra  bonos  mores  fiunt  nee  facere  nos  posse  credendum  est  "  ° 
is  the  well  known  utterance  of  the  most  famous  of  all  the  Roman 
jurists,  a  man  who  was  himself  executed  by  Caracalla  (more 
correctly,  murdered)  as  guilty  of  high  treason. 

The  truth  is  that  the  ancient  world,  which  regarded  criminal 
statutes  merely  as  a  means  to  insure  the  punishment  of  an  act 
deserving  punishment,  did  not  realize  that  the  imposition  of  a 
penalty  in  excess  of  the  plain  meaning  of  the  statute  was  not  com- 
patible with  the  security  of  the  rights  of  the  indi\-idual.^  The 
Roman  la\\wers  felt  themselves  justified  not  only  in  imposing  pen- 
alties "  ex  sententia  "  and  "  ad  exemplum  legis  ",  ^  but  also  in 
inflicting  punishments,  whenever  the  exigencies  of  life  seemed  to 
require  it,  for  acts  which  previously  had  not  been  the  occasion  for 
punishment.^ 

But  even  here,  as  remarked,  practice  did  not  go  beyond  the 
limits  of  actual  necessity.  Roman  jurists,  even  in  the  case  of 
the  crime  of  "  lese  majeste  ",  contending  successfully  against 
imperial  despotism,  introduced  a  distinction  between  "  perduel- 
lio  "  and  the  other  cases  of  "  lese  majeste  ",  and  limited  to  the 
former  the  severe  penalties  which  were  indiscriminately  imposerl 
by  the  emperors. '■*     They  succeeded  in  getting  the  emperors  tt) 

^  L.  15,  D.  "De  conditionibus",  28,  7. 

^  Cf.  as  to  Athens,  Thonissen,  "  Droit  penal  de  la  republiquexVthenienne 
etc.",  pp.  ÜÜ,  140  et  seq.  Cf.  as  to  Rome,  Henriot,  "JNIanirs  juridiques", 
etc.,  11,  p.  10(i. 

'  Cf.  e.g.  L.  6,  §  1,  D.  "De  V.  S."  Also  L.  22,  §§8,  9,  D.  48,  10,  "De 
lego  corn,  de  falsis."     Also  L.  7,  §  3,  D.  48,  4,  and  Rein,  pp.  22.5,  22(i. 

*  Cf.  Tit.  D.  "De  extraord.  erim."  47,  11,  and  in  reference  thereto, 
Geib,  "Geschichte",  p.  061.  In  the  later  empire,  when  the  jurists'  learn- 
ing was  in  its  decadence,  the  emperors  sought  again  to  restrict  the  au- 
thority of  the  judges.  The  prohibition  freely  to  construe  a  statute,  which 
was  repeated  by  .Justinian,  had  been  enacted  a  century  before  his  time. 
Cf.  Geib,  "Geschichte",  p.  063. 

9  L.  11,  D.  48,  4  (Ulpian). 

51 


§  20]  ROMAN    AND    GERMANIC    ELEMENTS  [Part  I,  TiTLE  I 

give  their  sanction  to  the  notal)le  expressions  of  L.  7,  §  3,  D.  48, 
4  eoneerning  "  lese  majeste."  In  addition  to  all  this,  we  owe  them 
our  thanks  for  those  two  fundamental  maxims,  so  far  reaching  in 
their  consequences,  which  to-day  dominate  the  criminal  law  and 
procedure  of  all  civilized  nations  :  "  Interpretatione  leguni  poenai 
potius  molliendae  sunt  quam  exasperandse  '\^°  and  "Satius  esse  im- 
punitum  relinqui  facinus  nocentis  quam  innocentem  damnare."  '^ 
We  also  owe  our  thanks  for  the  notable  utterance  of  Marcian  '- 
concerning  the  imposition  of  penalties. ^^  Again,  we  are  in- 
debted to  Roman  criminal  lawyers  for  a  correct  theory  of  respon- 
sibility, and  for  those  titles  of  the  Digest  which  to-day  are  often 
too  little  appreciated,  viz.,  "  De  furtis  ",  "  De  injurias  ",  and 
"  De  falsis  " ;  as  also  for  the  title  "  Ad  legem  Aquiliam  ",  so  im- 
portant for  that  cardinal  point  in  criminal  law,  the  relation  be- 
tween cause  and  effect.  The  last-mentioned  title,  as  a  result  of 
the  slight  regard  of  their  law  for  the  consequence  of  an  act,  had 
influence  only  in  private  law,  and  was  not  made  applicable  to 
criminal  law  imtil  the  Middle  Ages.  However,  since  Roman 
criminal  law  from  the  beginning  paid  too  little  attention  to  the 
protection  of  private  rights,  and  assumed,  as  it  were,  the  character 
of  police  regulations,  Roman  juristic  practice  did  not  attain  that 
high  degree  of  development  in  the  criminal  field  which  we  so  much 
admire  in  Roman  private  law.  This  is  shown  by  the  history  of  the 
theory  of  "  dolus  ",  which,  though  the  Roman  criminal  law  laid 
so  much  stress  on  "  dolus  ",  was  left  only  partially  developed  ; 
the  ultimate  result  of  an  act  was  in  general  given  little  considera- 
tion, and  "  dolus  "  can  be  accurately  comprehended  only  when 
it  is  considered  in  relation  to  a  specific  result.  But,  perhaps  it 
is  on  account  of  this  very  thing  that  the  Roman  criminal  law  had 
so  stimulating  an  influence  upon  the  German  Law. 

§  20.  Influence  of  Christianity  in  the  Later  Empire.  —  In  the 
later  Empire,  the  criminal  law,  upon  the  whole,  tended  to  dete- 
riorate. Just  as  the  Christians  had  previously  been  persecuted, 
so  now  the  power  of  the  State,  since  the  conversion  of  the  emper- 
ors,  was   directed    against   the   heathen,    whose   practices   were 

"  L.  42,  D.  "De  poenis",  48,  19. 

"  L.  5  pr.,  D.  "De  pcenis",  48,  19.  The  passage  is  taken  from  a 
rescript  of  Trajan. 

12  L.  11  pr.,  D.  "De  pcsnis",  48,  19. 

1^  Other  maxims  are:  "In  malefieiis  voluntas  speetatur,  non  exitus." 
Rescript  of  Hadrian  in  L.  14,  D.  48,  9.  "  Cogitatibnis  poenam  nemo 
patitm-"':  L.  IS,  D.  48,  19.  "Nee  consilium  habuisse  nocet  nisi  et  fac- 
tum seeutum  fuerit" :   L.  53,  §  2,  D.  "De  V.  S."   (Paulus). 

52 


Chapter  I]  THE  ROMAN  LAW  [§  20 

forbidden  by  stringent  laws,^  and  soon,  also,  against  heretics, 
i.e.  those  who  rejected  the  behefs  deckired  by  the  State  to  be 
orthodox.  It  was  now  the  heretics  who  were  regarded  as  of- 
fenders and  enemies  of  the  Christian  State.  But  the  right/  of  prose- 
cution was  by  no  means  delegated  to  the  Church  j/  nor  were 
individuals  put  on  trial  for  tlieir  personal  beliefs.  This  frightful 
calamity'  did  not  come  to  pass  until  the  domination  of  theology  in 
the  ^liddle  Ages.  As  yet,  only  the  adherents  of  certain  sects,-  were 
persecuted,  under  special  penal  statutes  of  varying  stringency,  or 
were  in  some  other  way  placed  at  a  legal  disadvantage.^  Consider- 
ing the  hostihty  of  parties  within  the  Church  towards  each  other  at 
that  time,  there  were  among  these  sects  many  which  could  not  well 
be  tolerated  without  danger  to  the  peace  and  the  public  safety.^ 

At  this  time,  new  and  stringent  penalties  were  laid  down  for 
the  protection  of  the  Church  and  the  clergy.  Laws  were  enacted 
against  the  disturbance  of  worship  and  against  acts  of  violence 
toward  members  of  the  clergy  when  performing  their  duties,  against 
seduction  of  nuns,''  interference  with  the  right  of  asylum  afforded 
by  the  Church,  and  the  violation  of  its  privileges  by  public  offi- 
cials.*' But  the  State,  as  it  gradually  became  weaker,  felt  itself 
constrained  to  restrict  with  penal  laws  the  extreme  power  of  the 
clergy  and  its  followers,  although  it  made  use  of  the  Clergy  in  the 
supervision  of  the  officers  of  criminal  justice.^  Thus,  e.g.,  "  con- 
venticula  "  in  private  houses,  which  often  occasioned  disturbances, 
was  stringently  prohibited.  Against  the  abuses  of  the  "  parab- 
olani  "  (the  caretakers  of  the  sick  and  needy  of  the  Church),  who 
were  often  at  the  absolute  disposal  of  a  bishop  and  constituted  a 
powerful  body-guard,^  there  were  directed  such  pro^■isions  as 
L.  17,  C.  1,  3^417  A.D.).» 

1  Plainer,  pp.  248  et  seq. 

2  Christians  going  over  to  the  beliefs  of  Heathendom  or  of  the  Jews 
were  also  ])unished  ;  cf.  Plainer,  pp.  204  ei  seq.  To  offer  circumeisioa 
to  a  Christian  was  later  a  capital  offense. 

*  Plainer,  pp.  252  el  seq. 

'  Cf.  e.g.  L.  2  and  3,  C.  Theodos.  16,  4  (a.d.  3<SS,  392).  Tliose  statutes 
forbade  unauthori/.ed  disputations  ooneerning  religion.  L.  5  C.  ("  De 
his  qui  ad  ecclesiani")  1,  12  (a.d.  450,  Mai'cian)  threatened  such  cases 
with  "ultimum  supplicium." 

^  L.  5,  C.  "De  cijiscopis  et  elericis",  1,  3. 

*  As  to  all  these  matters,  cf.  Plainer,  pp.  2()9  et  seq. 

''The  bishops  e.q.  insjx-ctecl  the  prison.  L.  9  C.  "De  cpi.scopali  au- 
dientia",  1,  4  (a.d.  409,  by  Theodosius). 

*  L.  15,  C.  1,  3  (a.D.  404,  by  Arcadius  and  Honorius).  As  to  tho 
interference  of  the  Clergy  with  executions,  cf.  L.  (5,  C.  1,  4. 

"  Concerning  acts  of  violence  by  the  "Monachi",  cf.  L.  6,  C.  1,  4  and 
L.  16,  C.  Theodos.  9,  40  (a.d.  398). 

53 


§  20]  ROMAN   AND   GERMANIC   ELEMENTS  [Part  I,  Title  I 

The  importance  which  the  clergy  frnuhially  acf[uire(l  in  the 
State  is  shown  l)y  the  inckision,  in  the  iinjK'riul  k'f2;ishition,  of  even 
such  provisions  deaUng  with  matters  of  discipHne ;  as,  L.  19, 
C  1,  3,  which  forbade  priests  to  Hve  with  women  other  than  near 
relations,  and  Novel  123,  c.  11,  which  forbade  them  to  play  the 
game  of  draughts. 

Protection  of  State  Sought  by  Numerous  Penal  Statutes.  — 
The  State  now  endeavored  by  means  of  countless  penal  statutes 
to  protect  itself  against  enemies  of  every  character.  Thus  it 
sought  to  protect  itself  against  the  increasing  inroads  of  the  Bar- 
barians by  prohibiting,  under  penalties,  the  instruction  of  Bar- 
barians in  the  art  of  ship-building,^"  and  also  the  trade  in  weapons 
and  articles  the  possession  of  which  aided  the  Barbarians  in  war.^^ 
Against  powerful  landowners  who  began  here  and  there,  as  it 
were,  to  play  the  part  of  sovereign,  it  protected  itself  by  criminal 
provisions  forbidding  private  prisons  ^^  and  armed  bodyguards 
("  isauri  ").^^  There  were  also  statutes  against  persons  who 
usurped  property  belonging  to  the  State  treasury  ("fiscus")  or 
rights  therewith  connected,  and  against  misuse  of  the  imperial 
mails,^^  interference  with  commercial  intercourse  with  the  metropo- 
lis, and  arbitrarily  raising  the  price  of  grain. ^^  The  State  also  pro- 
tected itself  against  the  faithlessness  or  negligence  of  its  own 
officials  by  the  imposition  of  heavy  fines.^^ 

Other  Effects  of  the  Influence  of  the  Church.  —  Apart  from 
the  persecution  of  heathen  and  heretics  and  the  above-mentioned 
offenses  against  the  Church,  the  influence  of  Christianity  is  seen 
in  the  different  manner  in  which  adulterv  was  treated.     The 


1»  L.  25,  C.  9,  47  (a.D.  419). 

"  Cf.  L.  11  pr.,  D.  "De  publicanis",  39,  4.  Also  L.  2,  C.  "quaB  res 
exportari  non  debeant",  4,  41  (Marcian).  The  exportation  of  gold  also 
was  forbidden  in  L.  2  C.  "De  commerciis"  4,  63  (by  Valentinian  and 
Valens). 

12  Cf.  L.  28,  §  7,  D.  "De  poenis",  48,  19;  also  L.  1,  C.  "De  privatis 
C£LrcGribiis "    Q    ^ 

13  C/.  L.  10,'  C.  "Ad  leg.  Jul.  de  vi  publ.  s.  priv.",  9,  12  (a.d.  468,  by 
Leo  and  Anthemius). 

1^  As  to  all  these  matters,  cf.  Platner,  pp.  306  ei  seq. 

1^  Attention  was  given  to  foodstuffs  ("annona")  as  early  as  the  Re- 
public. Originally  offenses  of  the  kind  mentioned  were  punished  by  the 
jediles  with  a  fine  or  were  arbitrarily  punished  upon  a  complaint  brought 
before  the  people.  Later  the  "Lex  Julia  de  annona"  was  in  force.  Cf. 
as  to  speculation  in  grain  especially  L.  6,  D.  "De  extraord.  crim.",  47, 
11.  As  to  illegal  monopolies,  cf.  L.  un.  C.  "De  monop.",  4,  59.  Cf. 
Rein,  pp.  829,  830. 

1^  Generally  expressed  in  pounds  of  gold :  cf.  Von  HoUzendorff,  pp. 
134  et  seq. 

54 


Chapter  I]  THE   ROMAN   LAW  [§  20 

right  of  filing  an  accusation  is  limited  to  the  married  parties  them- 
selves and  their  nearest  male  relatives.  Thus  adultery  appears 
more  as  an  offense  against  the  family,  and  the  relation  of  mar- 
riage is  no  longer  ruthlessly  sacrificed  to  the  interests  of  the  police 
power  of  the  State. ^^  This  same  influence  also  appears  in  an  ex- 
tensive political  protection  of  slaves/^  in  whom  Christianity  saw 
j)rimarily  the  friend  and  brother.  It  is  also  shown  in  the  severer 
})enalties  now  inflicted  for  a  great  number  of  crimes. ^^  As  ap- 
pears in  the  so-called  "  Collatio  Legum  Mosaicarum  et  Romana- 
rum"  (composed  presumably  during  the  300  s),  there  can  be  no 
doubt  that  the  Church,  regarding  divine  and  human  justice  as 
identical,  began  to  lay  claim  to  the  right  to  legislation  in  temporal 
matters,  and  to  act  in  accordance  with  the  Mosaic  legislation  (as 
at  that  time  understood).  Making  appeal  to  certain  familiar 
passages  in  the  Scriptures,  the  Church  began  to  demand  the  death 
penalty  in  a  number  of  cases  in  which  it  had  not  been  used  by  the 
Roman  law,  or,  if  used,  had  been  applied  with  certain  reservations 
or  to  only  the  lower  classes  of  the  people.  Thus,  there  may  be 
attributed  to  the  influence  of  Christianity  the  infliction  of  the  K 
death  penalty  for  adultery,  enacted  by  Constantine  but  later 
repealed.  The  death  penalty  was  also  introduced  by  Justinian 
for  cases  of  incestuous .  marriage.  Moreover,  in  the  words  of 
L.  3,  C.  "  De  episcopali  audientia  "1,4  (by  Valentinian,  Theo- 
dosius,  and  Arcadius)  "  Homicida  et  parricida  quod  fecit  semper 
expectet  ",  we  encounter  significant  thoughts  of  obligatory  retali- 
ation in  kind  ("  talio  ")  which  are  foreign  to  the  Roman  Law. 

Last  Stages  of  the  Roman  Criminal  Law.  —  The  chief  cause, 
however,  of  the  death  penalties,  which  were  so  frequently 
enacted  in  the  later  Empire,  was  the  caprice  of  the  emperors 
and  a  system  of  legislation  which  was  calculated  to  serve 
temporary  purposes  and  had  lost  all  sense  of  the  distinction 
between  punishment  for  crime  and  punishment  for  police  pur- 

1'  This  change  was  introduced  by  Constantine.  Cf.  particularly  Von 
Wächter,  " A])handluiifi:en  a.  d.  Strafrechts",  pp.  118  et  seq.  and  L.  2,  C. 
Theodos.  9,  7  (L.  29  [30]  C.  J.  9.  9)  :  "ue  volentibus  teniere  liceat  foedare 
connubia." 

'*  Cf.  e.g.  L.  G,  C.  11,  41  "De  spectaculis"  (a.d.  428)  which  forbade 
masters  to  place  female  slaves  in  brothels.  Constantine  had  previously 
forl)i(ld(>n  (cf.  L.  1,  C.  "De  emendatione  servorum",  9,  14)  the  existinic 
custom  of  inhumanly  flogp:ing  slaves  as  a  punishment  for  homicide. 

^^  The  counterfeiting  of  a  "solidus"  was  punished  bv  burning  alive 
by  L.  5,  C.  Theodos.  9,  21.  Peculation  (>ntailed  the  death  penalty  (L.  1, 
C.  Theodos.  9,  28),  as  did  also  the  origination  and  circulation  of  "libelli 
famosi"  (L.  10,  C.  Theodos.  9,  34). 

55 


§  20]  ROMAN    AND    GERMANIC    ELEMENTS  [Pakt  I,  TiTLK  I 

poses.  Reckless  experiments  were  made  with  a  crude  theory  of 
deterrence,  without  l^nowledge  of  the  effect  which  excessive  and 
varying  penal  provisions  have  upon  the  morals  of  a  people.  In 
this  respect,  it  is  sufficient  to  recall  the  barbarous  penal  provi- 
sions of  the  despotic  Constantine  against  the  crime  of  abduction,-" 
and  the  provisions  of  the  Code  of  Theodosius  which  threatened 
with  severe  criminal  penalties  the  wearing  of  trousers  in  Rome 
or  the  wearing  of  long  hair ;  to  recall  also  the  passage  which  pro- 
vided deprivation  of  all  honors  and  possibly  deportation  for 
those  who  ventured  to  use  a  thorn  stick  in  urging  horses  of  the 
imperial  posts.^^ 

Many  of  those  deformities  of  the  law  were  indeed  repealed  by 
the  better  emperors,  among  whom  Justinian  may  be  included. 
However,  on  the  whole,  the  principles  of  the  Roman  criminal 
law,  excellent  in  many  respects,  had  only  an  uncertain  and  pre- 
carious application.  They  were  known  to  the  jurists  but  were 
never  the  absolute  property  of  the  people.  On  the  other  hand, 
it  may  be  regarded  as  fortunate  that  these  principles  were  pre- 
served in  the  compilation  of  Justinian  along  with  the  numerous 
arbitrary  features  belonghig  to  Roman  State  crimes  and  probably 
inseparable  therefrom.  '  Jhe  genius  of  the  Germanic  peoples  was 
able  to  reject  the  irrational  elements  and  at  the  same  time  to  make 
the  fundamenta^^rinciples  the  permanent  property  of  the  entire 
civilized  world.--"/ 

2"  Molten  lead  was  poured  into  the  mouth  of  the  niu'ses  (or  governesses) 
who  had  loaned  then*  assistance :   L.  1,  C.  Theodos.  9,  24. 

2'  As  to  tliis  and  similar  matters,  cf.  Von  Holtzendorff,  p.  146. 

22  There  is  little  of  immediate  interest  for  the  history  of  German  criminal 
law  in  the  history  of  Roman  criminal  law  after  Justinian.  It  is  deser\ing 
of  notice,  but  not  readily  explainable,  that  the  later  Greek  law  had  much 
in  common  mth  the  German  criminal  law  of  the  Middle  Ages.  Thus 
there  was  to  be  found  composition  and  settlement  with  the  injured  partj'. 
Cf.  E.  Zacharici  v.  Lingenlhal,  "Geschichte  des  griechish-röniischen 
Rechts"  (2d  ed.  1877),  pp.  303  et  seq. 


56 


Chapter  II 


PRIMITIVE   GERMANIC   CRIMINAL  LAW 


§2L 


§22. 


§  23. 
§24. 


Prominence  of  the  Element 
of  Vengeance.  Outlawry 
not  the  Most  Primitive 
Form  of  Punishment. 

Special  Relations  of  Peace. 
"Breach  of  the  Peace  of 
the  Land." 

Composition  of  Offenses. 

Little  Consideration  Given 
to  the  Element  of  Inten- 
tion.    Explanation  of  this 


§25. 


§26. 


Lack     of     Consideration. 
Secrecy. 
Influence  of  the  Early  Kings. 


Capitularies 
Carolingians. 
Ban. 
Other     Forms 
Punishment. 


of  the 

The  Royal 

of    Criminal 
Influence  of 


tlie  I^unishment  of  Slaves. 
Effect  of  Loss  of  Freedom 
by  Mass  of  the  People. 


§21.  Prominence  of  the  Element  of  Vengeance. — The  prim- 
itive Germanie  criminal  law,'  far  more  distinctly  than  that  of  the 

1  In  regard  to  the  matter  contained  in  this  chapter  the  following  writers 
may  be  consulted:  Wiarda,  "Geschichte  und  Auslegung  des  Salischen 
Gesetzes"  (1808);  Henke,  "  Grundriss  einer  Geschichte  des  deutschen 
peinliehen  Rechts"  (2  vols.  1809),  cf.  Vol.  I,  pp.  1-108;  Eichhorn, 
"Deutsche  Staats-  und  Reehtsgeschiehte  "  (5th  ed.).  Vol.  I,  §§  71.  206; 
Rogge,  "  Ueber  das  Gerichtswesen  der  Germanen"  (1820);  Jarcke, 
"Handbuch  des  deutschen  Strafrechts"  (Vol.  I,  1827),  pp.  10  et  seq.; 
Grimm,  "Deutsehe  Rechtsaltert hümer"  (2d  ed.  1854);  Abegg,  "Unter- 
suchungen aus  dem  Gebiete  der  R(>chtswissenschaft  "  (1830) ;  Warnkönig, 
"  Flandrische  Reehtsgeschiehte  "  (3  vols.  1838-39);  Von  Woringc»,  "Bei- 
träge zur  Geschichte  des  deutschen  Strafrechls  ",  I,  "Erläuterungen  über 
das  Compositionenwesen "  (1836);  Wilda,  "Das  Strafreeht  der  Ger- 
manen" (1842j;  Von  Wächter,  "Beiträge  zur  deutschen  Geschiehte,  iu- 
besonderer  des  deutsehen  Strafreehts"  (18-1.")),  11,  "Das  Faust-  und 
Fehdereeht  des  Mittelalters";  Walter,  "Deutsche  Reehtsgeschiehte" 
(2d  ed.,  1857),  Vol.  2,  pp.  319-417  et  seq.;  Du  Boys,  "  Histoire  du  droit 
criminel  des  peuples  modernes"  (4  vols.  Paris,  1854  et  seq.);  Woitz, 
"Deutsche  Verfassungsgcsehichte  "  (3d  ed.  1880),  I,  especially  pp.  418- 
442;  Kösllin,  "Geschichte  des  deutschen  Strafsreehts  im  Umriss,  heraus- 
gegeben von  Gessler  "  ( 1859),  pp.  58  et  seq. ;  Geib,  "  Lehrbuch  des  deutschen 
Strafrechts",  I  (1861),  pp.  152-196;  Osenbriiggen,  "Das  alamannisclu« 
Strafreeht  im  Mittelalter"  (1860);  Osenbrüggen,  "Das  Strafreeht  der 
Langobarden  "  ( 1863) ;  Von  HoUzendorff,  "  Handbuch  des  deutschen  Straf- 
rechts ",  I,  pp.  57-67;  Da/i?i.,  "  Westgothisehe  Studien"  (1874),  pp.  140- 
242;  Pasquale  del  Giudice,  "La  vendetta  nel  diritto  Langol>ardo" 
(Milano,  1876);  R.  Löning,  "Der  Vertragsbmch  im  deutsehen  Recht" 
(1876);    Dahn,  "Fehdegang  und   Rechtsgang  der  Germanen"    (1877); 

57 


§  21]  ROMAN    AND    GERMANIC    ELEMENTS  [PaeT  1,  TiTLE  I 

Romans,  is  based  upon  the  principles  of  vengeance  -  and  self- 
defense.  This  criminal  law,  when  it  assumed  the  form  of  ven- 
geance, belonged  only  to  the  party  injured  or  his  kinsmen 
("  sippe  ").^  However,  the  party  injured  might  be  the  com- 
munity at  large,  if  the  ofi'ender  made  a  direct  attack  upon 
the  community,  or  fell  short  in  the  performance  of  duties 
owed  to  it. 

The  criminal,  then,  is  the  enemy  of  either  the  individual  or  the 
community.  But  it  is  only  in  the  latter  case  (since  it  is  only  in 
his  relation  to  the  community  that  the  early  German  appears  as 
subject  to  authority)  that  the  idea  of  public  or  State  punishment 
acquires  prominence.  Thus,  in  the  "Germania"  of  Tacitus,'* 
the  expression  "discrimen  capitis  intendere"  refers  only  to  direct^^ 
offenses  against  the  community,  such  as  treason,  going  over  to 
the  enemy,  and  disgraceful  retreat  "*  in  battle ;    while  the  worst 

Von  Wächter,  "Beilagen  zu  Vorlesungen  über  das  deutsche  Strafrecht",  I 
(1877),  pp.  77  et  seq.;  Jastroiv,  "Zur  strafrechtlichen  Stellung  der  Sclaven 
bei  Deutschen  und  Angelsachsen"  (1878);  Sichel,  "Geschichte  der 
deutschen  Staatsverfassung",  Division  I,  "  Der  deutsche  Freistaat "  (1879). 
[Cohn,  "  Die  Verbrechen  im  öffentlichen  Dienst,  nach  altdeutschem  Recht  " 
(Karlsruhe,  1876);  Bennecke,  "Geschichte  des  deutschen  Strafprozesses" 
(Marburg,  1886);  Budde,  "  Ueber  Rechtlosigkeit,  Ehrlosigkeit  und  Echt- 
losigkeit"  (Bonn,  1882);  Kohler,  "  Studien  aus  dem  Strafrecht"  (Berlin, 
1895);  Beschütz,  "Die  Fahrlässigkeit  innerhalb  der  geschichtlichen  Ent- 
wickelung  der  Schuldlelu-e :  Theil  I :  Vom  primitiven  Strafrecht  bis  zur 
peinlichen  Gerichtsordnung  Karls  V";  Brunner,  "Deutsehe  Rechtsge- 
schichte", 1st  ed.,  Leipzig,  1887-1892;  2d  ed.,  Vol.  I,  1906;  Hoegel,  "Ge- 
schichte des  österreichischen  Strafrechts  in  Verbindung  mit  einer  Erläu- 
terung seiner  grundsätzlichen  Bestimmungen  ",  1904-5  ;  K.  Maurer,  "  Vor- 
lesungen über  altnordische  Rechtsgesehichte  "  ;  Vol.  5,  "Altisländisehes 
Strafrecht  und  Gerichtswesen",  1910;  Heusler,  "Das  Strafreeht  der 
Isländersagas",  1911  ;  Gierke,  "Schuld  und  Haftung  im  alteren  deutschen 
Recht",  1909;  //caster,  "Institutionen  des  deutschen  Privatrechts", 
1883-5;  Schröder,  "Lehrbuch  der  deutschen  Rechtsgeschichte",  5th  ed., 
1912.] 

2  "Lex  Bajuv."  VIII,  c.  8  "secundum  legem  vindicta  subjaceant." 

3  Tacitus,  "Germania",  c.  21:  "Suscipere  tam  inimicitias  seu  patris 
seu  propinqui  quam  amicitias  necesse  est."  As  in  the  early  stages  of 
legal  development  with  other  peoples,  vengeance  appears  as  a  moral 
duty.  As  proof  of  this,  it  is  only  necessary  to  recall  the  Nibelungensage. 
As  to  the  Norse  Sagas,  in  which  vengeance  is  enjoined  upon  near  blood 
relatives  as  a  moral  duty,  see  Wilda,  pp.  172,  177. 

■'"Germania",  c.  12. 

^  "  Licet  apud  consilium  accusare  quoque  et  discrimen  capitis  intendere. 
Distinctio  poenarum  ex  delicto.  Proditores  et  transfugas  arboribus  sus- 
pendunt ;  ignavos  et  imbelles  et  corpore  infames  cseno  ae  palude,  iniecta 
insuper  crate  mergunt."  The  much  disputed  "corpore  infamis"  certainly 
has  reference  to  unnatural  lewdness  {cf.  Tacitus,  "Annals",  I,  13).  How- 
ever this,  according  to  the  most  primitive  German  law,  was  criminally 
punishable  only  when  it  occurred  at  encampments  of  the  army,  —  just 
as,  in  Tacitus,  mention  is  made  only  of  crimes  which  took  place  during 
a  military  expedition.  In  the  army,  discipline  was  more  strictly  exer- 
cised than  under  the  ordinary  criminal  law,  and  in  the  army  the  tempta- 

58 


Chapter  II]  PRIMITIVE    GERMANIC    CRIMINAL   LAW  [§  21 

offense  against  the  individual,  homicide,  merely  brought  about, 
according  to  Tacitus, •"'  a  condition  of  hostility  from  which  the 
payment  of  some  composition  would  procure  release.  "  Luitur 
enim  et  homicidium  certo  armentorum  ac  pecorum  numero,  reci- 
pitque  satisfactionem  univcrsa  domus."  As  has  been  correctly 
stated  by  Eichhorn,^  it  was  only  in  cases  of  crime  against  the  nation 
itself  that  the  nation  acquired  power  over  the  life  or  body  of  a 
free  man.  The  "  Lex  Bajuvariorum  "  declares :  ^  "  Ut  nullus 
liber  Bajuvarius  alodem  aut  vitam  sine  capitali  crimine  perdat ; 
id  ist  si  in  necem  ducis  consiliatus  fuerit,  aut  inimicos  in  provin- 
ciam  invitaverit  aut  civitatem  capere  ab  extraneis  machina\erit. 
,  .  .  Tunc  in  ducis  sit  potestate  vita  ipsius  et  omnes  res  ejus  in 
Patrimonium."  ^     This,    however,    did    not    preclude    the    party 

tion  and  inducement  to  the  above-mentioned  offense  were  espeeially  great. 
Cf.  Arnobius,  "Adv.  nationes",  4,  7  p.  146,  19  II:  "Etiamnc  mililaris 
Venus  eastrensibus  flagitiis  pnesidet  et  puerorum  stupris."  For  oilier 
explanations,  cf.  Waitz,  I,  p.  396  (2d  ed.),  p.  425  (3d  ed.).  Hcnkc,  I, 
p.  4,  believes  that  "corpore  infames"  has  reference  e.g.  to  voluntary 
mutilation  with  the  view  to  avoid  military  service.  Also  Pnsqunle  del 
Giudice,  p.  5,  believes  the  passage  of  Tacitus  has  reference  only  to  the 
exercise  of  disciplinary  power  in  the  army,  and  correctly  calls  attention 
to  the  fact  that  c.  11  of  Tacitus  says:  "Silentium  per  sacerdotes  quihus 
tum  et  coercendi  jus  est  imperatur."  The  priests  have  the  "jus  coerceudi " 
only  during  the  public  assembly. 

^  "Germania,"  c.  21. 

7  Eichhorn,  I,  p.  387. 

^  "Lex  Bajuv.",  tit.  2,  c.  1. 

^  Where  penalties  of  life  and  limb  on  account  of  private  crimes  occur 
in  the  Germanic  folk-laws,  they  are  in  my  opinion  to  be  attributed  to 
some  foreign  influence,  —  to  the  Roman  law  or  to  the  ordinances  of  the 
kings.  There  is  perhaps  an  exception  for  the  numerous  death-penalties 
on  account  of  theft,  which  was  considered  dishonorable  for  a  free  man. 
On  the  other  hand,  Von  Ainira,  "Ueber  Zweck  und  Mittel  der  german- 
ischen Rechtsgeschichte  "  (1876),  pp.  .')7-59,  reasserts  the  essentially  reli- 
gious character  of  early  Germani(!  criminal  law.  1  am  unalih",  however, 
upon  the  whole  to  find  justification  for  ascribing  this  character  to  the  Ger- 
manic law,  either  in  the  Norse  sources,  in  the  relation  between  capital 
punishment  and  the  sacrifice  of  human  victims  among  the  heathen  Frisians, 
or  in  the  above-mentioned  passage  from  Tacitus  (G.  C.  7)  concerning  the 
criminal  power  of  the  priests.  The  idea  that  among  the  priiniti\e  G(>r- 
mans,  in  the  case  of  crimes  against  the  community,  the  gods  wlio  protected 
the  same  must  also  be  reconciled  is  not  to  be  rejected.  But  tliis  religious 
flavor,  as  it  were,  is  not  to  be  taken  as  definitive  of  the  character  of  the 
criminal  law.  The  passage  of  Tacitus  speaks  only  of  crimes  committed 
on  military  expeditions;  the  Germans,  as  Tacitus  expressly  states, 
believed  in  the  specud  presence  of  their  gods,  and  only  during  the  mili- 
tary expedition,  as  Tacitus  states,  did  the  Germans  submit  to  a  certain 
criminal  power  in  matters  of  discipline  which  was  exercised  by  the  priests 
and  for  this  reason  was  held  in  greater  respect. 

Von  Amira  asserts  that  a  larger  part  of  the  base  acts  which  in  heathen 
times  were  punished  with  death  (sacrifice«  as  a  victim)  wert>  liy  Cliris- 
tianity  made  expiable  or  merely  to  entail  outlawry.  Yet  althougli  this 
may  be  correct  in  regard  to  the  Scandinavians,  it  has  not  been  proven  true 
in  regard  to  the  territory  of  the  Frankish  realm,  and  in  my  opinion  is 

59 


§21]  ROMAN    AND    GERMANIC    ELEMENTS  [Part  I,  TiTLE  I 

injured,  in  extreme  cases,  from  liis  right  to  slay  the  criminal  if 
the  latter  was  not  able  to  pay  the  composition  levied  by  the 
community  or  fixed  by  mutual  agreement.  "  Et  si  eum  in  con- 
positione  nullus  ad  fidem  tullerunt  hoc  est  ut  redimant,  de 
quo  domino  non  persolvit,  tunc  de  sua  vita  conponat."  '"^  The 
criminal  would  be  delivered  by  the  judicial  power  to  the  family 
of  the  man  slain  by  him,  for  the  exercise  of  private  vengeance, 
—  as  we  find  occasionally  happening  even  in  the  later  ^Middle 
Ages.-'^ 

The  community  appears  to  have  been  concerned  in  the  crime 
only  in  so  far  as  it  arranged  the  peace  between  the  hostile  parties, 

not  the  ease.  It  is  certainly  correct,  as  Richthofen,  "  Zur  Lex  Saxonum" 
(Berlin,  1868),  pp.  218  et  seq.,  has  shown  (Von  Amira  also  refers  to  this) 
that  the  heathen  Saxons  inflicted  capital  punishment  for  murder,  adul- 
tery, and  certain  other  offenses  not  directly  prejudicial  to  the  community, 
and  that  most  of  those  cases  in  which  capital  punishment  was  inflicted, 
found  in  the  Lex  Saxonum  and  the  Saxon  Capitularies  of  Charles  the 
Great,  which  differ  from  those  of  the  other  German  folk-laws,  are  received 
from  and  modelled  after  the  more  primitive  law  {e.g.  burning  of  a  church, 
homicide  in  a  church).  But  it  is  not  to  be  assumed  from  this,  that  the 
Saxon  law,  as  it  existed  immediately  before  the  statutes  of  Charles  the 
Great  or  even  a  century  earlier,  is  an  example  of  the  oldest  Saxon  law  or 
the  law  of  the  race  in  the  time  of  Tacitus.  Private  vengeance  can  be  sup- 
planted by  public  punishment  without  the  intervening  steps  of  composi- 
tion, and  this  could  readily  occiu"  in  cases  where  the  previous  similaritj'^ 
between  members  of  the  same  race  vanished  under  the  domination  of  an 
individual  or  of  a  powerful  aristocracy  comparatively  few  in  number. 
This  last  was  undoubtedly  the  case  with  the  Saxons,  among  whom  the 
"nobiles  ",  who  constituted,  as  it  were,  a  caste  from  which  the  ordinary 
free  men  were  excluded  (c/.  Richthofen,  "Zm*  Lex  Saxonum",  pp.  223  et 
seq.)  and  who  infUcted  death  upon  the  ordinary  free  man  who  married 
one  of  their  number,  and  were  even  able  to  impose  for  themselves  six  (!) 
times  the  "wergeld"  of  an  ordinary  freeman.  Such  a  condition  did  not 
exist  among  the  other  German  tribes.  Perhaps  such  a  penalty  as  the  above 
was  applied  only  against  those  who  were  not  nobles,  and  against  nobles 
there  was  only  the  right  of  feud.  This  would  explain  the  special  protec- 
tion of  the  "faidosus"  in  certain  cases.  (C/.  Richthofen,  p.  231,  as  to 
provisions  of  tliis  character  in  the  "Lex  Frisionum"  which  east  light  upon 
the  "Lex  Saxonum.")  This  also  explains  why,  after  Charles  the  Gi-eat, 
the  domination  of  the  nobles  being  broken,  there  re\dved  in  most  cases 
the  old  law  of  composition,  which  was  so  long  retained  as  the  most  ancient 
law  of  North  Germany.  Cf.  the  comments  of  Siekel,  pp.  72  et  seq.  and 
especially  pp.  76,  77  :  "If  one  considers  more  closely  the  conditions  under 
Avhich  the  German  priesthood  lived,  it  will  be  seen  that  often  the  priest- 
hood had  conditions  unfavorable  for  its  development." 

io"Les  Salica",  LVIII,  2  a.  E.  (ed.  Behrend);  cf.  Wiarda,  p.  272; 
Pardessus,  "  Loi  salique  ",  p.  664.  Abcgg,  p.  319,  also  explains  the  passage 
in  this  way.  In  the  supplements  of  Count  Baldwin  to  the  decrees  of 
Ghent,  in  the  last  of  the  1100  s,  it  is  said  that  for  a  case  where  an  "e.x- 
traneus"  had  wronged  an  "oppidanus"  (citizen),  and  had  not  rendered 
him  satisfaction  within  the  fixed  time  ("quod  si  nondum  satisfecerit  reus), 
"licebit  male  tractate,  sine  omni  forisfacto  .  .  .  qualemcunque  potuerit 
vindictam  sumere":  Warnkönig,  "Flandrische  Staats-  und  Rechtsge- 
schichte", II,  1,  note  vii  (p.  18). 

"  Cf.  Warnkönig,  "Flandrische  Reehtsgeschichte  ",  III,  p.  160. 

60 


Chapter  II]         primitive  Germanic  criminal  law  [§  21 

i.e.  the  offender  and  the  party  injured.'-  Then/''  if  the  party 
injured  announced  that  he  would  be  satisfied  with  the  payment  of 
a  composition,  which  in  the  most  primitive  times  consisted  of 
n  number  of  cattle,  the  community  received  from  the  criminal 
{i.e.  for  the  arrangement  of  the  peace)  ^"^  the  "peace  money" 
("fredus"  or  "fredum"). 

•2  "Germania",  c.  12:  "Sed  et  levioribus  delictis  pro  modo  poena: 
equorum  peeorumque  numero  eonvicti  multantur.  Pars  multae  regi  vel 
civitati,  pars  ipsi  qui  vindieatur,  vcl  propinquis  ejus  exsolvitur." 

"  It  must  have  been  realized  that  open  hostility  between  numerous 
citizens  was  injurious  to  the  community,  "quia  perieulosiores  sunt  inimi- 
citiiE  juxta  libertatem."  Apparently  the  chiefs  arranged  the  peace  at 
the  gathering  of  the  army,  and  the  "fredus"  was  originally  a  present 
voluntarily  given  by  tlie  offender. 

"  The  more  generally  accepted  view  is  {cf.  Waitz,  "Deutsche  Verfass- 
ungsgeschichte", I,  p.  440;  Gierke,  "Das  deutsche  Genos.senschaftsrecht  ", 
I,  p.  31)  that  the  "fredus"  was  a  pennltij  paid  because  of  the  breach  of  the 
peace,  and  not  a  price  paid  for  the  peace  that  was  reestablished  (between 
the  offender  and  the  injured  party);  cf.  Waller,  "Rechtsgeschichte",  II, 
§.  714;  Wniiz,  3d  ed.,  I,  p.  440.  It  is  left  undetermined  which  of  these 
two  was  the  case.  To  me,  this  distinction  is  unclear.  Waitz  rejects  the 
idea  of  payment  to  the  one  who  arranged  the  peace ;  but  would  he  sooner 
admit  payment  for  judicial  activity?  There  is  no  special  evidence  for 
this,  but  rather  there  is  only  the  general  but  incorrect  impression  (see 
infra)  that  the  crime  is  a  breach  of  the  general  peace.  Cf.  the  contradic- 
tory position  taken  by  Kemble,  "The  Saxons  in  England",  I,  p.  290;  also 
the  comments  of  Moser,  "Patriot.  Phantasien"  (Abeken),  IV,  pp.  12G 
et  seq.;  Von  Wächter,  "Beiträge",  p.  42;  Vo?i  Siegel,  p.  29.  It  can  be 
positively  proven  that  according  to  the  "Capitularies"  ("Cap.  Karoli 
M.  Ticinense  ",  a.d.  801,  n.  24  Ferlz,  p.  86)  the  "fredus"  was  not  paid  to 
the  judge  of  the  district  in  whicli  the  crime  took  place  {i.e.  where  the 
peace  was  broken),  but  rather  to  the  judge  who  arranged  the  composition  ; 
that  the  payment  of  the  same  was  received  for  the  injured  party  ;  and 
further  that,  according  to  the  ancient  rules  of  law  and  those  obtaining 
until  nearly  the  end  of  the  Middle  Ages  {cf.  e.g.  "Lex  Rib."  LXXXIX  ; 
"Cap.  Karoli  M."  a.d.  801;  "Brüimer  Stadtr.  a.  d.  Mitte  des  XIV 
Jahrhunderts",  §  41  (in  Röxsler),  p.  358;  Von  Maxirer,  "Geschichte  der 
Städteverfassung  in  Deutschland  ",  111,  p.  G5S  ;  "Brünner  Schöffenbuch  ", 
n.  245)  the  judge  might  only  receive  this  payment  for  negotiating  the 
peace  ("esmenda"  or  "wette")  if  the  "satisfactio"  or  "compositio"  had 
■previously  been  paid  to  the  injured  party;  and  finally  that  the  "fredus" 
or  later  the  "wette"  was  not  paid,  if  there  had  l)ei'n  public  punishment 
("Sachs.  Landrecht",  111,  50;    "Schwal)ensi)ieger',   17G,  ed.  Lasshirg). 

Public  punisliment  is  a  substitute  for  vengeanci',  and  also  the  opposite 
of  the  arrangement  of  a  peace.  If  it  was  (as  corresponds  with  tlie  modern 
but  not  the  medieval  view)  a  reestablishment  of  peace  between  the  com- 
munity, the  injured  party,  and  the  offender,  then  the  "fredus"  would  bo 
paid  both  in  addition  to  "compositio"  and  to  public  punishment.  It  was 
not  until  the  rise  of  a  procedure  under  the  diri'ction  of  ])ul)!ic  oHicials 
that  tlu!  "fredus"  assumed  the  character  of  a  pul)lic  punishin(>nt  {Von 
Maurer,  ante).  There  is  also  connected  lierewith  the  fact  tliat,  until 
late  in  the  Middle  Ag(>s,  a  far-reacliing  distinction  was  made  betwi'i-ii  the 
criminal  who  voluntarily  api)eared  and  him  who  was  captunnl.  The 
former,  according  to  the  Bamberg  law,  even  if  ho  was  convicted  by 
witnesses,  would  be  again  set  free;  capital  punishment  was  not  permis- 
sible: Brunnenmeister,  "Die  Qu(>llen  der  Bambergonsis,  ein  Beitrag  zur 
Geschichte  des  deutschen  Strafrechts"  (1879),  pp.  44,  45. 

61 


§21]  ROMAN   AND    GERMANIC   ELEMENTS  [Pakt  I,  Title  I 

Outlawry  not  the  Most  Primitive  Form  of  Punishment.  —  The 
view  of  Wilda  and  others  tliat  the  earhest  punishment  of  the 
criminal,  even  in  offenses  against  the  individual,  was  a  general 
outlawry,  in  the  sense  that  the  criminal  was  at  once  cast  out 
among  the  wild  animals  of  the  forest,  thus  becoming  a  "  forest 
rover  "  ("  wargus ")  who  could  be  killed  by  anyone  with 
impunity,  is  not  correct.  Under  these  circumstances,  as  Von 
Amira  points  out,  a  contract  with  the  party  injured  would  be 
legally  ineffective,  and  the  outlawry  would  at  once  become  public 
punishment  in  its  strict  sense.  That  outlawTy  of  this  character 
appears   in   the   Norse   sources    is    admitted.^'     But   the    Norse 

Von  Woringen,  pp.  105  et  seq.,  is  correct  in  his  view  that  a  crime  did  not 
originally  cause  general  outlawry,  but  he  incorrectly  concludes  that  the 
"fredus"  would  have  to  be  paid  for  the  breach  of  the  peace.  Since 
peace  had  not  been  lost  for  the  criminal,  it  could  not  well  be  repurchased. 
But  what  is  the  distinction  between  a  broken  peace  and  a  lost  peace?  I 
am  unable  to  see  the  difference.  It  is,  however,  proper  to  make  a  distinc- 
tion between  peace  with  the  injured  party  and  peace  with  the  community. 
The  fact  that  the  amount  of  "fredus"  was  graded  in  accordance  with  the 
person  who  was  injured  is  capable  of  a  ready  explanation  by  the  \qew  here 
accepted.  Can  not  the  price  for  negotiating  the  peace  be  varied  in 
accordance  with  the  importance  of  the  controversy,  and  is  not  this  what 
would  naturally  happen? 

Sickel,  p.  1.54,  would  maintain  that  the  "fredus"  was  originally  not  a 
court  fee,  especially  for  the  reason  that  the  "collegium"  of  judges  were 
too  numerous  to  derive  benefit  from  it.  But  could  there  not  be  certain 
favored  ones,  who  e.g.  made  the  proposal  for  the  peace?  The  narrative 
of  Gregory  of  Tours  (Hist.  Franc,  c.  47)  given  by  Rogge  (p.  1.5,  note  25), 
is  in  accord  with  the  view  that  the  "compositio"  rested  originally  merely 
upon  a  compromise,  which  the  leaders  of  the  nation  negotiated  with  a. 
view  to  the  advantage  of  the  general  public.  The  judges  considered 
themselves  justified  in  order  to  perfect  a  settlement  someway  or  other,  in 
conceding  to  some  powerful  party  an  amount  as  a  "compositio"  to  wliich, 
according  to  strict  justice,  be  had  no  claim.  In  no  way  did  the  later  public 
punishment  supplant  the  money  paid  for  the  peace,  but  rather  it  sup- 
planted the  exercise  of  vengeance,  of  private  satisfaction.  Consequently 
it  is  stated  in  the  "Sächsisches  Landrecht  ",  III,  50,  that  if  a  German  had 
incurred  as  a  penalty  the  loss  of  life  or  hand,  he  should  pay  neither  "wette  " 
nor  compensation  ;  and  the  Kursaxon  law  even  in  the  1600  s  did  not  recog- 
nize "wergeld",  if  the  individual  who  was  sentenced  underwent  the  death 
penalty ;  wliile  the  Italians,  proceeding  from  the  independence  of  the 
ei\'il  claim  in  respect  to  the  claim  for  punishment,  allowed  claims  for 
damages  to  the  descendants  of  the  slain  man  in  a  judgment  pronouncing 
the  death  penalty  against  a  murderer  or  generally  one  who  had  slain 
another:  Berlich,  " Conclusiones  practicabiles "  (1615-1619),  IV,  19,  n. 
15  et  seq.  and  especially  n.  24. 

Confiscation  of  property,  but  not  a  definite  amount  of  money  as  a 
penalty  or  as  a  compensation,  is  related  to  the  idea  of  vengeance ;  since 
confiscation  of  property  amounted  to  the  economic  destruction  of  the 
offender,  while  a  definite  measure  of  damages  according  to  tlie  old  Ger- 
man viewpoint  presupposed  an  agreement.  Consequently,  along  with 
punishment  by  death  or  mutilation,  there  were  numerous  confiscations  of 
property.  The  distinction  between  confiscation  of  property  and  "wette  ", 
'  busse  ",  is  overlooked  by  Köstlin,  "Krit.  Ueberschau,"  Vol.  3,  p.  183. 

^*  Cf.  in  opposition  to  the  opinions  herein  contested,  the  correct  obser- 

62 


Chapter  II]  PRIMITIVE   GERMANIC   CRIMINAL  LAW  [§  21 

sources/^  which  are  later  than  the  time  of  the  origin  of  the 
folk-laws,  by  no  means  exemplify  the  Germanic  criminal  law 
in  its  earliest  form,  and  certainly  it  is  not  justifiable  to  main- 
tain that  all  the  legal  institutions  of  the  Xorse  people  were 
those  of  the  Germanic  peoples  generally.  In  the  Germanic 
sources,  the  nearest  approach  to  outlawry  as  a  consequence  re- 
sulting directly  from  tlie  act  (and  not  as  something  inflicted 
by  the  royal  or  judicial  power  as  a  punishment  for  refusal  to 
submit  to  the  law,  or  as  a  form  of  attainder)  ^^  is  to  be  seen 
only  in  the  fact  that,  in  the  earliest  periods,  the  party  injured 
was  permitted  to  wreak  vengeance  upon  the  criminal,'^  to  treat 

vations  of  Von  Woringen,  pp.  103,  104,  and  Hugo  Meyer,  "Das  Strafver- 
fahren gegen  Abwesende"  (18(59),  pp.  48  et  seq. 

^^  Von  Amira,  "Das  al t nor wegi sehe  VoUstreekungsverf ahren "  (1874), 
pp.  1-78,  especially  pp.  18  cl  seq.  Cf.  the  comments  of  K.  Von  Maurer 
in  the  "Münchener  kritische  Vierteljahrsehrif t ",  16  (1874),  p.  83  et  seq.; 
[and  Chap.  VI,  post]. 

1'  Cf.  Rogge,  pp.  19  et  seq.  Loss  of  the  general  peace  did  not  occur 
until  the  offender  had  ignored  the  intervention  of  the  communit.v,  and 
flid  not  heed  the  summons  of  the  complainant  to  appear  before  the  assem- 
bly. But  even  tliis  was  not  until  the  acceptance  of  this  intervention  had 
come  to  be  regarded  as  a  legal  duty.  Tliis  loss  of  the  general  i)eace  in  I  lie 
French  and  German  sources  because  of  the  existence  of  a  strong  kingly 
power  appeared  as  a  form  of  proscription.  Cf.  "Lex  Salica"  .öl),  1  (Kd. 
Behrend) :  "Si  quis  ad  mallum  venire  contempserit  ...  si  nee  de  eomi)()si- 
tione  uec  ineo  nee  de  ulla  legem  lidem  faeere  voluerit,  tunc  ad  regis  priv- 
sentia  ipso  mannire  debet  .  .  .  §  2  .  .  .  tunc  rex  .  .  .  extra  sermonem  suum 
ponat  eum."  Rogge,  however,  is  mistaken  in  his  view  that  at  this  time 
the  offender  had  the  right  to  choose  between  "compositio"  and  feud. 
The  offender  appears  to  have  been  absolutely  bound  to  pay  the  "composi- 
tio" if  the  injured  party  so  desired.  Cf.  as  opposed  to  Kogge,  Eichhorn, 
I,  §  18,  note  G;    Von  Woringen,  p.  38. 

The  development  of  the  law  in  Italy  as  it  appeared  in  the  law  of  the 
Lombards  is  in  conformance  herewith.  The  so-called  public  ("städt- 
ische") ban  which  was  so  important  in  the  later  Middle  Ages,  and  to 
which  so  much  attention  is  given  by  both  the  statutes  and  the  jurists 
was,  in  grave  criminal  eases,  primarily  a  result  of  disobedience.  How- 
ever, it  became  a  punishment  in  so  far  as,  on  failure  of  an  accused,  whose 
guilt  was  known,  to  pr(»sent  himself  in  the  proper  manner,  the  thouglit 
of  compelling  him  to  appear  became  subsidiary  to  the  idea  of  making  tlio 
ban  (a  partial  or  complete  deprivation  of  legal  protection)  so  severe  that 
it  took  tlic  place  of  the  ap|)r<)i)riat('  i)iinislun('nt.  Cf.  FicL-cr.  "  Forseliuiigen 
zur  Reichs-  und  Rechtsgcsehichtc^  Italiens"  (I,  ISfiS).  pp.  92  et  .srr/., 
especially  97.  The  statement  that  under  some  circumstances  the  mere 
ban  creating  banishment  was  the  equivalent  of  an  independent  punish- 
ment is  not  prejudiced  l)ut  is  rather  supported  by  two  arguments  —  on 
one  hand,  that  if  there  was  fear  that  disturbance  and  feud  would  result 
from  the  continued  residence  of  the  accused  in  the  city,  this  ])unishmeiit 
was  suggested  by  reasons  of  expediency,  and,  on  the  other,  tlial  if  the 
offender  was  not  able  to  pay.  l)anislimeiit  must  have  been  regarded  as  of 
less  severity  than  tlie  puinsliincnt  of  mutilation  which  wouhl  otiierwise 
be  inflicted.  The  CJerman  "  Kciclisacht"  or  "  Iti'iehsaberacht "  {i.e.  ban 
of  the  empire)  is,  according  to  a  correct  conception,  a  ban  becau.se  of  dis- 
obedience and  not  "per  se"  a  punisliment  of  certain  crimes:  FicL-er,  pp. 
174  et  seq. 

^^  Cf.  Eichhorn,  I,  §  18;    Von   Woringen,  pp.  32  cl  seq.;  I'ardcssus,  pp. 

03 


§21 J  ROMAN    AND    GERMANIC    ELEMENTS  [Pakt  I,  TiTLE  I 

him  as  "  faidosus  ",  and  that  i)()ssihly  some  of  his  comrades  would 
take  it  upon  themselves  to  support  the  party  injured  in  his  actions. 
There  may  also  have  been  something  of  this  character  when  the 
<'riminal  rejected  or  paid  no  attention  to  the  proposition  of  settle- 
ment ofl'ered  to  him  by  the  injured  party  through  the  public  as- 
sembly, or,  at  a  later  period,  when  the  criminal  ignored  the  sum- 
mons of  the  king  (or  court)  issued  upon  motion  of  the  injured 
party.'-' 

Possibly  the  development  of  the  law  in  France  may  have  been 
the  same  as  that  shown  in  the  Norse  sources ;  an  indication  -° 
of  this  may  be  found  in  the  passage  of  the  "  Lex  Salica  "  "'  quoted 
by  Wilda  and  in  the  "  Lex  Ribuariorum  ",  LXXXV. 

Apart  from  those  acts  which  were  especially  directed  against 
the  king  or  the  community,  a  crime  is  not  so  much  a  breach  of  the 
general  yeace  as  it  is  a  breach  of  peace  --  with  the  party  injured r^ 

653  et  seq.;  Von  Wächter,  "Beiträge  zur  deutschen  Geschichte",  pp.  4.3 
and  249.  At  a  later  period,  indeed,  the  injured  party  was  obliged  to  be 
content  with  a  "compositio."  However  I  do  not  agree  mth  Von  Amira 
in  his  view  that  this  was  the  most  primitive  law.  Rather  does  this  exhibit 
a  very  early  trace  of  the  Germanic  character  which  still  appears  in  our 
modern  duels,  and  which  prefers  to  take  the  law  in  its  own  hands  rather 
than  assign  it  to  a  judge.  However,  Tacitus  states  that  the  immediate 
consequence  of  a  wrong  was  the  "inimicitise  ",  which  could  be  appeased  by 
the  payment  of  compensation. 

'a  Moreover,  vengeance  was  to  be  exercised  with  observance  of  certain 
formaUties,  —  was  public  as  it  were,  so  that  it  could  itself  be  distinguished 
from  crime.  Thus,  among  the  Salian  Franks  the  head  of  ä  man  who  had 
been  slain  in  the  exercise  of  vengeance  was  placed  upon  a  stake,  and  a 
third  party  was  not  permitted  to  remove  it:  "Lex  Sal.",  XLI,  8,  2. 
Vengeance  here  appeared  as  a  formal  institution  of  law.  Cf.  Wiarda,  p. 
283.  By  the  setting  up  of  the  head,  the  slayer  as  it  were  offered  a 
public  justification  of  his  act:  Pardessus,  p.  658. 

2"  The  "Lex  Salica"  pro\'ided  that  anyone  who  should  dig  up  and  rob 
a  buried  body  "wargus  sit  usque  in  die  ilia  quam  ille  cum  parentibus 
ipsius  defuncti  conveniat  et  ipsi  pro  eum  rogare  debent,  ut  illi  inter  homines 
liceat  accedere.  Et  qui  ei  antequam  parentibus  conponat,  aut  panem 
dederit  aut  hospitalitatem  dederit,  sen  parentes  seu  uxor  proxima,  DC 
dinarios  qui  faciunt  solidos  XV  culpabilis  judicetur."  However,  the 
offense  here  referred  to  has  a  distinct  religious  significance  and  for  this 
reason  the  method  in  which  it  is  dealt  with  may  be  explained  as  being 
exceptional. 

21  LV,  2  ed.  Behrend. 

22  As  stated  by  Waiiz  (3d  ed.),  I,  p.  436,  agreeing  with  Walter,  §  705 : 
"It  may  be  said  that  in  respect  to  the  indi\adual  {i.e.  the  injiu-ed  partj' 
and  his  family)  the  offender  was  without  peace ;  he  had  destroyed  the 
existing  peace."  Cf.  also  Sickel,  who  (correctlj'  in  my  opinion)  concludes, 
from  the  isolated  lives  of  the  indi\adual  famihes,  that  the  community  was 
not  concerned  wath  injuries  to  individuals. 

23  The  acceptance  of  the  \'iew  that  crime  originally  among  the  Ger- 
mans was  a  breach  of  the  general  peace  is  nothing  other  than  the  accept- 
ance of  the  \iew  that  there  was  a  public  criminal  law  for  what  we  to-day 
call  crimes  against  individuals  (i.e.  as  contrasted  vvith  crimes  against  the 
State  as  such).      Such  is  the  \iew  of  Waitz,  I,  pp.  427  et  seq.,  who  here 

64 


Chapter  II]  PRIMITIVE   GERMANIC   CRIMINAL   LAW  [§21 

According  to  the  Germanic  conception,  the  essence  of  a  crime  is 
not  the  breach  of  formal  law  and  order,  but  rather  the  violation  of 
a  substantive  rigJitr^  This  is  an  idea  which  should  be  constantly 
held  in  mind  if  one  would  hope  to  gain  a  proper  conception  of  the 
German  criminal  law  and  its  historical  development.  In  the 
Germanic  conception  of  law,  the  so-called  "  formal  crime  ",-'' 
i.e.  a  crime  that  does  not  violate  a  concrete  right,  is  regarded 
as  a  special  exception.^^  In  the  Xorse  sources  it  is  most  probal)lc 
that  this  same  condition  obtained,  i.e.  the  general  outlawry  resulted 
only  because  of  regard  for  the  party  injured.  The  crime  in  itself 
is  not  a  breach  of  the  peace  with  the  community  at  large,  —  al- 
though such  may  easily  be  its  result.     The  classification  of  oflFenses 

foUows  the  (unclear  in  other  respects)  conception  of  Wilda.  But  if,  as 
Waitz  maintains,  there  was  such  an  extensive  criminal  power  as  early  as 
the  time  of  Tacitus,  how  is  the  fact  to  be  reconciled  that  in  spite  of  a  royal 
power  that  was  increasing  and  becoming  more  vigorous,  the  public  criminal 
power  was  less  in  extent  and  weaker  even  under  kings  such  as  Charles  the 
Great?  How  is  it  to  be  reconciled  ^\^th  this  \-iew  that,  as  even  Waitz 
says  (3d  ed.  p.  439),  it  was  only  the  complaint  of  the  injured  party  that 
brought  about  a  prosecution  of  the  WTongdoer? 

^^  Herein  I  am  completely  in  accord  with  Löning,  "Der  Vertragsbruch 
im  deutschen  Rechte",  p.  48,  who  states  that  tlie  feud  was  the  only  legal 
consequence  of  a  wTong  in  the  earliest  Germanic  law.  The  feud  was, 
according  to  the  "  Lex  Salica",  ended  by  a  pledge  to  render  a  composition, 
and  the  judgment  is  directed  towards  the  performance  of  this  pledge. 

^'^  It  should  be  noted  in  connection  heremth  that,  in  the  primitive 
Germanic  law,  the  sacred  or  rehgious  aspect  of  law  is  not  very  prominent. 
Crimes  against  individuals  are  not  regarded  as  offenses  against  the  Gods. 
Tacitus  was  of  the  opinion  that  it  was  only  in  case  of  offenses  against  the 
army  that  the  priests  had  a  criminal  power,  and  thus  explains  it :  "deum 
adesse  bellantil)us  credunt."  The  special  punishment  of  a  violation  of  a 
place  sacred  to  the  Gods  among  the  Frisians  ("Lex  Fris."  Add.  11)  can 
readily  be  explained  by  the  idea  that  in  this  case  the  deity  was  wronged 
just  as  the  individual  whose  home  was  ^\Tongfully  broken  into. 

^^  The  punishment  of  unchastity  as  such,  i.e.  not  merely  as  a  WTong 
or  injury  to  another  person,  e.cj.  the  head  of  the  household,  was  originally 
unknown  to  the  Germanic  law.  The  well-known  passage  of  Tacitus 
("Germania",  e.  12)  concerning  the  "corpore  infames"  probably  refers 
to  the  punishment  of  sodomy.  But  from  the  general  position  of  the 
passage,  since  Tacitus  speaks  only  of  the  punishment  of  ads  prejudicial 
to  the  army,  it  appears  that  it  refers  only  to  sodomy  committed  during 
a  military  encampment.  Cf.  note  5  ante.  Also  in  "(^ap.  Ansegisi"  c. 
48  {Pertz,  "Legg."  I,  p.  278)  mention  is  made  onlj^  of  penalties  enforced 
by  the  church  for  unnatural  lewdness.  Is  it  permissible  to  assume  tliat 
the  early  punishment  of  unnatural  lewdness  was  later  discontinued? 
From  the  North  German  sources,  it  appears  that  offenses  against  morality 
were  treated  with  extraordinary  leniency  until  the  1200  s.  Bigamy  <.;/. 
was  punished  in  Lübeck  with  quite  moderate  fines,  (y.  Frcnilarff.  in  thi' 
"Hansische  Geschichtblättern"  (1874),  I,  pp.  30,  37  \  Hire,  "Zeitsclirift 
für  Keelitsgeschichte  ",  III,  p.  210  el  scq.  Äloreover,  in  the  later  South 
German  and  Swiss  sources  unnatural  lewdness  is  frequently  referred  to  as 
"Ketzerei"  ("heresy")  and  "Unchristliches"  {cf.  Osetihriiygcn,  "Das 
Alamannische  Strafrecht  ",  p.  289),  a  positive  e\-idence  of  the  origin  of  the 
legal  rules  dealing  herewith  in  the  influence  of  the  Church. 

65 


§  22]  ROMAN   AND   GERMANIC   ELEMENTS  [Paut  I,  Title  I 

as  those  which  are  and  those  wliich  are  not  breaches  of  the  peace 
was,  in  its  original  sense,  based  neither  upon  the  elements  consti- 
tuting the  offense,  nor  upon  its  object,  but  rather  upon  its  legal 
consequences. 

§  22.  Special  Relations  of  Peace.  —  There  were,  as  appears 
from  the  early  German  sources,  certain  special  relations  of  peace 
in  connection  with  certain  persons,  assemblies,  places,  times,  and 
things.  Thus  there  were  such  relations  of  peace  in  respect  to 
assemblies  of  the  people,  also  of  the  courts  ("  Dingfrieden  "), 
and  of  the  Church  (including  also  persons  attending  the  popular 
or  court  assemblies  or  the  army  or  the  Church).  Other  examples 
of  a  "  peace  "  applied  to  the  home,  the  mill,  the  royal  palace  or 
generally  the  place  of  residence  of  the  king  (or  duke),  or  else 
have  to  do  with  the  clergy  or  travelers.  Now  a  breach  of  such  a 
special  relation  of  peace  did  not  constitute  a  special  kind  of  crime. 
It  was  merely  a  fact  affecting  an  act  of  violence  which  would  in 
any  case  have  been  a  wrong,  and  deprived  it  of  the  possibility  of 
justification  on  the  ground  that  it  had  been  done  in  pursuance  of  a 
lawful  feud.  The  language  of  the  ancient  sources  referring  to  this 
is  unequivocal.  INIention  is  always  made  of  an  act  which  would, 
in  any  case,  be  an  offense ;  ^  nothing  is  said  relating  to  an  abstract 
breach  of  the  peace,  e.g.  the  peace  of  the  court  ("  Dingfrieden  ") 
or  the  peace  of  the  home.- 

"  Breach  of  the  Peace  of  the  Land."  —  It  was  not  until  later 
that  a  special  offense  was  constituted  by  the  so-called  "  breach  of 
the  peace  of  the  land  "  ("  Landfriedensbruch  ").     This  referred 

'  Cf.  e.g.  "Lex  Salica"  (ed.  Behrend),  LXIII.  §  1:  "Si  quis  hominem 
ingenuum  in  oste  occiderit  .  .  ."  ;  "Lex  Sax.",  XXI_,  "  Qui  in  ecclesia  homi- 
nem Occident  vel  aliquid  furaverit  vel  earn  effregerit  .  .  .  "  ;  XXIH,  "Qui 
homini  ad  eeelesiam  vel  de  ecclesia  die  festo  pergenti  .  .  .  insidias  posuerit 
eumque  occiderit";  XXVII:  "Qui  hominem  propter  faidam  in  propria 
domu  occiderit  capite  puniatur."  Here  the  home  and  the  peace  of  the 
home  does  not  constitute  an  exception.  It  was  originally  regarded  as  a 
violation  of  the  peace  of  the  home  only  if  one  entered  a  house  with  violence 
\\\\.\\  a  view  of  committing  an  act  which  was  of  a  criminal  nature  apart 
from  this  special  circumstance,  e.g.  to  kill,  to  steal  or  to  commit  an  act 
in  pursuance  of  a  feud.  Entrance  leith  arms  (mth  or  vvnthout  the  consent 
of  the  person  dwelling  in  the  house)  was  deemed  the  equivalent  of  enter- 
ing with  violence.  C{.  "Lex  Rib.",  64  (66) ;  "Lex  Burgund.",  XV;  "Lex 
Bajuv."  (Textus  I),  "XI,  "De  vlolentia."  In  "Ed.  Rothari",  278  it  is 
even  stated:  "Mulier  curtis  rupturam  facere  non  potest,  .  .  .  absurdum 
videtur  esse,  ut  mulier  libej-a  aut  ancilla  quasi  vir  cum  armis  vivi  facere 
possit."     However,  this  rule  was  abolished  in  the  law  of  the  Lombards. 

2  If  as  e.g.  in  the  "Cap.  Karoli  M."  a.  803  [Pertz,  "Legg",  p.  126  it  is 
said:  "Ut  ecclesia,  vidua?,  orfani,  vel  minus  potentes  pacem  rectam 
habeant.  Et  ubicumque  fuerit  infractum  sexaginta  solidis  componatur  ", 
yet  it  is  only  meant  by  this  that  violence  under  the  justification  of  self- 
redress  is  not  to  be  exercised  against  the  parties  named. 

66 


Chapter  II]  PRIMITIVE   GERMANIC   CRIMINAL   LAW  [§23 

to  private  war  between  members  of  the  higher  classes,  the  tenants 
*'  in  capite  "  of  the  crown,  the  barons,  and  tlie  cities ;  sueh  j)rivate 
wars  continued  long  after  the  time  when  other  acts  of  violence 
done  by  individuals  had  lost  the  justification  of  self-redress  or 
feud,  and  also  long  after  the  time  when  a  feud  could  be  begun 
because  of  a  breach  of  a  promise  specially  given  by  an  individual 
in  respect  to  some  definite  point  in  dispute  ^  settled  through  com- 
promise or  agreement. 

§23.  Composition  of  Offenses. — The  offenses  which  in  those 
times  were  the  most  important  and  with  which  the  folk-laws  were 
mostly  concerned  were  homicide,  personal  injuries,  and  certain 
injuries  to  property.  The  folk-laws  contain  provisions  fixing  in 
very  exact  detail  the  amount  of  the  damages  ("  compositio  "). 
This  latter,  in  cases  of  homicide,  was  called  "  weregildnm  ", 
"  werigilt  "  (meaning  "  man  money  "  or  "  man  price  ")  and  also 
*'  lend  us  "  or  "  leudis."  The  damages  were  calculated  with  a 
regard  to  the  importance  of  the  part  of  the  body  injured  or  lost 
to  the  party  injured,  and  also  with  regard  to  his  rank.^  In  the 
gradation  of  the  damages,  attention  was  also  paid  to  the  violation 
of    honor    which    accompanied    the    offense,-    certain    pro\isi()ns 

'  CJ.  Loning,  "Vertragsbruch",  I,  p.  133,  who  correctly  is  opposed  to  the 
position  taken  by  Wilda  and  also  l)y  Köstlin  and  Geib,  who  would  exalt 
the  pledged  peace  into  being  a  higher  variety  of  the  general  peace.  It 
was  not  until  later  that  a  breach  of  a  pledged  peace  constituted  the  special 
offense  of  "Urfehdebruch"  (i.e.  breach  of  oath  to  keep  the  peace)  :  Loning, 
p.  500.  This  appears  in  "Ed.  Rothari  ",  143  as  a  circumstance  specially 
aggravating  an  act  which  would  be  an  offense  regardless  of  this  circum- 
stance. Such  an  act  could  be  regarded  as  especially  disgraceful,  and 
came  close;  to  a  suggestion  of  the  idea  that  by  its  commission  its  author 
declared  himself  no  longer  governed  by  any  rules  of  law  {cf.  the  formula 
of  outlawry  in  such  cases,  given  by  Grimm,  p.  39).  Legislation  had  every 
reason  to  deal  very  vigorously  with  such  cases.  The  discussions  of  the 
Post-Glossators  concerning  the  effect  of  a  "pa.x  facta"  are  in  accord 
herewith.  An  offense  was  not  regarded  as  a  violation  of  the  "pax"  be- 
cause the  offender  had  previously  made  an  agreement  with  the  injured 
party,  but  only  if  the  act  was  done  "animo  vindicandi"  with  a  view  to 
reviving  the  controversy  which  had  been  put  aside.  Cf.  e.g.  linrlohifi,  on 
"L.  Verum  est"  n.3-.5D.  "De  furtis"  ;  thesameon  §  Causa  D.  "DepaMiis." 

'  Higher  penalties  were  required  for  the  injury  or  killing  of  an  "in- 
genuus"  than  for  the  injury  or  killing  of  a  serf  ("litus")  or  "shiNe" 
("servus").  According  to  the  law  of  many  of  the  i)i'oples,  a  higher  \alue 
was  placed  upon  a  nol)le  {cf.  Grimm,  "Deut.sche  KechtsalttTthiimer  ".  jjp. 
272  et  -seq.)  ;  also  upon  one  who  was  an  associate  of  the  king  ("in  truste 
dominiea  esse").  According  to  some  laws,  a  higher  "wergeld"  was  paid 
for  women  (if  they  were  capable  of  bearing  children),  but  according  to 
others  and  more  generally  a  lesser  "wergeld."  Lesser  amounts  wen- 
exacted  for  injuries  done  by  a  person  who  was  unfn>e.  (Regard  was 
given  however  to  the  master  who  was  liable  for  the  acts  of  his  "servus" 
if  he  did  not  deliver  him  for  vengeance  or  later  for  the  infliction  of  pul)lic 
punishment.)      Grimm,  p.  058. 

-  Thus  according  to  the  "Lex  Sal.",  XVII,  8,  a  larger  satisfaction  was 

G7 


§  24]  ROMAN    AND    GERMANIC    ELEMENTS  [Pakt  I,  TiTLE  I 

])iinisli  Injuries  to  honor  that  were  merely  verbal.^  As  to  viola- 
tions of  j)roperty,  special  consideration  is  given  to  the  killing  or 
injury  of  domestic  animals,  the  destruction  of  houses  by  burning 
or  in  some  other  manner,  mischief  done  to  the  fields,  and  theft. 

§  24.  Little  Consideration  Given  to  the  Element  of  Intention. 
—  The  primitive  Germanic  law  has  often  been  criticized  on  the 
ground  that  it  paid  attention  only  to  the  external  injury  and  took 
no  notice  of  the  accompanying  intention.  It  is  a  fact  that  it  made 
no  difference  in  the  "  compositio  ",  as  a  rule,  whether  the  injury 
was  intentional  or  unintentional,  whether  it  was  done  with  or 
without  premeditation.  The  lord,  for  example,  who  instigated 
his  serf  ("  litus ")  to  kill  another,^  acting  intentionally  and 
deliberately,  paid  no  more  as  a  "  compositio  "  than  he  who  caused 
the  death  of  another  by  a  degree  of  negligence  so  slight  that 
perhaps  it  was  scarcely  distinguishable  from  mere  chance.-  Pro- 
visions punishing  attempts  at  a  crime  ^  are  very  few ;  and  the 
treatment  of  accessories  to  a  crime  *  does  not  accord  with  the 
fundamental  principles  of  a  system  of  criminal  law  administered 
for  public  purposes.^ 

required  for  a  blow  with  the  fist  than  for  a  blow  witha  club.  For  injuries 
to  the  person,  e.g.  the  cutting  of  the  hair  or  beard  against  one's  will,  cf. 
"Lex  Alam.  Hloth."  LX,  n.  23,  24.  As  to  pulling  the  beard,  see  the 
statutes  of  ^thelbirht  Kap.  1,  n.  23  ("feaxfang"),  Schmid,  "Ges.  d. 
Angelsachsen"  (2d  ed.),  pp.  6  &  7;  "  Ed.  Roth.",  383.  As  to  closing  of 
a  road,  "Lex  Sal.",  XXXI  ("De  via  lacina").  As  to  the  improper  or 
lewd  grasping  of  a  woman  (even  the  simple  touching  of  an  arm  or  finger), 
there  was  imposed  by  the  "  Lex  Sal.",  XX,  a  penalty  of  15  "  solidi.''  Rape 
is  mentioned  often  and  as  one  of  the  graver  crimes  {cf.  "  Lex  Sal.",  XXV, 
l,"Ed.  Roth.",  186). 

'  CJ.  "  Lex  Sal.",  XXX;  reproach  of  cowardice:  "  Si  quis  alteram  le- 
borem  (leporem)  si  clamaverit."  "Lex  Sal.",  XXX,  .5:  "Si  quis  alium 
arga  per  furorem  clamaverit."  ("  Ed.  Roth.",  381.)  It  was  considered  even 
more  serious  if  one  accused  another  of  having  cast  away  his  shield  in 
battle :  Grimm,  p.  644  et  seq. 

1  Cf.  "  Lex  Sal."  VIII  ("  Lex  Fris.",  I,  14). 

2  "  Lex  Sax.",  LTII :  "  Si  arbor  ab  alio  prsecisa  easu  quemlibet  oppres- 
serit,  conponatur  multa  pleno  weregildo  a  quo  arbor  prseeisa  est."  lb., 
LIX  :  "  Si  ferrum  manu  elapsum  hominem  percusserit,  ab  eo  cujus  manum 
fugerit,  conponatur  excepta  faida." 

3  Cf.  post,  §  36,  the  theory  of  attempt. 

^  Thus,  as  a  rule,  instigation  was  not  treated  as  participation  in  crime : 
"Lex  Fris.",  11,  2,  "Ed.  Rothari "  10,  11.  However  the  "  Lex  Visig." 
{cf.  e.g.  VI,  5,  12)  often  punished  the  instigator  the  same  as  the  actual 
perpetrator,  and  caused  public  punishment  to  be  inflicted  upon  all  the 
perpetrators  of  a  homicide  where  there  were  more  than  one. 

5  The  "Lex  Fris."  (II,  2)  is  also  interesting  as  to  this  matter.  If  one 
free  man  had  instigated  a  second  free  man  to  kill  a  third,  and  he  who 
did  the  lulling  had  not  escaped,  but  the  relatives  of  the  slain  were  able 
to  make  a  demand  upon  him,  then  the  law  did  not  concern  itself  with 
the  instigation  but  regarded  merely  the  manifest  act  of  the  actual  perpe- 
trator.    But  the  instigator  must  see  to  it  how  he  may  appease  the  rela- 

68 


Chapter  II]  PRIMITIVE   GERMANIC   CRIMINAL  LAW  [§  24 

Explanation  of  Lack  of  Consideration  of  Element  of  Intention. 
■ —  This  paramount  consideration  paid  to  the  objective  side  of 
crime  should  not,  however,  be  taken  merely  as  an  evidence  of 
the  barbarity  of  the  Germanic  tribes,  nor  should  it  be  absolutely 
assumed  that  the  Germans  had  no  conception  of  guilt  in  its  ethical 
aspect.  In  the  first  place,  custom  here  to  a  certain  extent  repre- 
sented the  law.  In  the  second  place,  a  regard  for  the  mental 
attitude  and  intention  of  the  ofTender  does  appear  from  the  char- 
acter of  those  crimes  which  were  regarded  as  especially  serious. 
When  legal  development  is  in  its  infancy,  the  need  for  fixed  rules, 
easy  to  handle,  is  greater  than  the  need  for  a  complete  substantive 
justice  which  leaves  more  room  for  the  exercise  of  discretion  (and 
also  at  the  same  time  more  room  for  arbitrary  action).  Attempt- 
ing to  deal  with  individual  cases  at  too  early  a  stage  of  legal  de- 
velopment is  dangerous  to  freedom ;  for  it  would  require  a  very 
extensive  judicial  power.  Thus,,  under  some  circumstances,  it 
is  appropriate  for  the  law,  at  a  time  when  its  administration  of 
justice  is  as  yet  incomplete,  to  treat  with  equal  leniency  cases  of 
either  intentional  or  negligent  injury,  and  also  for  it  to  presume  ^ 
that  an  injury  is  due  to  negligence  where  we,  upon  a  more  exact 
examination,  would  consider  it  as  merely  a  result  of  chance. 
Furthermore,  it  must  be  remembered  that,  where  legal  protection 
is  inadequate,  it  is  easily  possible  that  there  obtains  for  intentional 
injury  the  justification  of  self-redress  and  feud,  or  at  least  that 
such  a  justification  exists  in  the  minds  of  those  who  do  the  injury. 
There  is  no  doubt  that  the  customs  made  an  early  distinction  be- 
tween intentional  and  unintentional  injuries.  While  the  injured 
party,  in  case  of  grave  injuries,  and  especially  in  case  of  the 
killing  of  a  relative,  could  originally  choose  between  resorting  to 

tives  of  the  slain,  —  "nihil  solvat,  sed  inimioitias  propinquorum  hominis 
oeeisi  patiatur,  donee  quo  modo  potuerit  ooriim  amicitiam  adipiscatur." 
The  "Lex  Sax."  (XVIII)  in  the  ease  of  intentional  iKjmieide  (by  instiga- 
tion of  a  "servus")  gave  the  relatives  the  ehoiee  lM>tween  "compositio" 
and  "faida"  (feud).  If  the  homieide  merely  resulted  from  negligenee,  a 
"compositio"  was  to  be  paid  and  aecepted,  "exeepta  faida."  Cf.  also 
"  Ed.  Roth."  75,  138  (147)  showing  a  greater  progress  in  legal  development ; 
"cessante  faida,  quia  nolendo  fecit." 

"  I  liave  endeavored  to  give  a  more  exact  statement  of  these  ideas  in 
my  work,  "Das  Beweisurtheil  des  germanisclien  Processes"  (Hannover, 
186G)  especially  pp.  41  el  ffcq.  Cf.  also  Dahti  (" Westgothische  Studien", 
1874,  p.  273),  who  says  it  is  the  characteristic  of  the  German  law  of  proof 
that  it  "primarily  is  founded  upon  presumptions." 

[On  this  subject,  see  the  citations  at  the  Ix^ginning  of  this  chapter, 
which  point  out  that  the  Germanic  failure  to  distinguish  radically  bet\yeen 
intentional  and  unintentional  harms  is  a  characteristic  of  all  primitive 
legal  systems.  —  Ed.] 

69 


§  21]  ROMAN    AND   GERMANIC    ELEMENTS  [Pakt  I,  Titlk  I 

feud  or  demanding  a  "  cornpositio  "/  yet,  where  the  act  was  unin- 
tentional,^ he  should  at  least  be  satisfied  with  the  "  cornpositio."  * 
First  by  custom,  and  later  by  law  he  was  bound  so  to  do,  since  a. 
feud  was  permissible  only  in  cases  of  a  public  and  intentional 
injury. ^° 

Secrecy.  —  The  element  of  secrecy  ^^  obtained  an  early  promi- 
nence in  the  conception  of  crimes.  By  secrecy  the  offender 
fixed  upon  his  act  the  character  of  unlawfulness,  not  capable 
of  justification.  Thus  the  satisfaction  required  for  murder 
("  Mord  "),  i.e.  a  slaying  followed  by  a  concealment  of  the  corpse,^- 
was  especially  severe.  Moreover,  the  conception  of  theft,  at  the 
time  of  the  early  law-books,  and  even  later,  involved  the  idea  of  a 
secret  carrying  away.^'^     It  was  not  the  idea  of  the  cowardice  of 

'As  Dahn  ("Fehdegang  und  Rechtsgang",  pp.  34  et  seq.)  correctly 
shows,  in  the  earliest  period,  the  offender  also  could  allow  a  feud  to  ensue 
and  the  penal  provisions  in  the  time  of  the  Merovingians  practically- 
signified  nothing  further  than  that,  if  both  parties  chose  the  method  of 
court  procedure,  the  court  would  award  to  the  party  injured  the  amount 
therein  specified.  But  the  knowledge  of  what  in  a  certain  event  one 
might  pay  and  the  other  might  receive  made  easier  the  way  for  an  ami- 
cable cornpromise.  The  narrative  of  Gregory  of  Tours  {ante)  shows  that 
often  only  the  Church  by  special  sacrifices  was  able  to  make  a  settlement 
possible. 

*  The  provision  that  those  of  tender  years  were  not  obliged  to  pay 
"Friedensgeld"  {i.e.  peace  money;  cf.  "Lex  Sal.",  XXIV,  5,  "Si  vero 
puer  infra  XII  annos  aliqua  culpa  eommittat,  fretus  ei  nuUatenus  re- 
quiratur")  shows  that,  just  as  in  the  Norse  law,  those  of  tender  years 
were  not  subjected  to  outlawry :    Wilda,  pp.  640  et  seq. 

"  The  division  of  offenses  into  those  which  entail  a  breach  of  the  peace 
and  those  lesser  offenses  which  do  not,  although  this  can  also  be  found  in 
the  Scandinavian  sources  (cf.  Wilda,  pp.  268  et  seq.),  belongs,  however, 
to  a  later  stage  of  development,  which  placed  greater  limits  upon  the 
province  of  breaches  of  the  peace,  i.e.  cases  which  entailed  vengeance  and 
outlawTy. 

10  Cf.  e.g.  "Lex  Sax.",  LIX.  No  "faida"  (feud)  could  ensue  "si 
ferrum  manu  elapsum  hominem  percusserit." 

"  Cf.  also  Oseyihrilggen,  "Der  ethische  Factor  im  altdeutschen  Rechte" 
in  his  "Studien  zur  deutschen  und  schweizerischen  Rechtsgeschichte" 
(1868),  pp.  1-18. 

"  Cf.  e.g.  "Lex  Rib.",  XV.  "De  homine  mordrido.  Si  quis  ingenuus 
Ribuarium  interfecerit  et  eum  cum  ramo  cooperuerit  vel  in  puteo  seu  in 
quocumque  libet  loco  celare  voluerit  quod  dicitur  mordridus,  sexcentis 
solidis  culpabilis  judicetur"  {i.e.  tlireefold  "Wergeid").  "Ed.  Roth." 
14  :  "Si  quis  homicidium  in  absconso  penetraverit  .  .  .  noningentos  solidos 
conponat  .  .  .  ."  According  to  "Lex  Sax.",  XVIII  (ed.  Merkel),  a  nine- 
fold "wergeld"  was  paid. 

"  "Lex  Sal.",  XXXIII,  1  :  "Si  quis  de  diversis  venationibus  furtum 
fecerit  el  ceZai-en^  .  .  .  ."  "LexBajuv."  (Textus  I),  IX,  9:  "  Si  quis  occw7/e 
in  nocte  vel  die  alienum  cavallum  aut  bovem  aut  aliquod  animal  occiderit 
et  negaverit  et  postea  exinde  probatus  fuerit  tanquam  furtivura  conponat." 
Cf.  also  post,  §  35,  under  the  theory  of  theft.  Among  the  Lombards  and 
Alamanni  the  penalty  for  theft  was  ninefold  ("Ed.  Roth.",  253  et  seq.). 
Furthermore,  at  an  early  date  the  death  penalty  for  many  cases  of  theft 
is  to  be  found  in  some 'folk-laws  ("Lex  Sax.", 'XXVIII-XXX,  XXXII, 

70 


Chapter  II]  PRIMITIVE   GERMANIC   CRIMINAL  LAW  [§  25 

a  secret  act  that  induced  this  distinction.  That  would  be  assum- 
ing an  artificial  moral  conception,  and  is  not  in  accord  with  the 
ideals  of  a  system  of  law  which  was  contending;,  first  and  foremost, 
with  violence.  This  distinction  was  rather  due  to  the  fact  that 
where  the  killing  of  a  man  or  the  taking  away  of  a  thing  was 
public,  the  excuse  was  possible,  in  times  when  violent  revenge  and 
self-redress  were  prevalent,  that  the  act  was  done  in  pursuance 
of  a  real  or  believed  right ;  whereas  a  secret  act  would  in  general 
not  admit  of  this  justification. 

§  2").  Influence  of  the  Early  Kings.  —  A  strong  kingly  power, 
such  as  we  find  under  the  early  jNIerovingians,  which  under  the 
influence  of  Christian  ideals  ^  regards  itself  as  the  supreme  guardian 
of  justice,  necessarily  feels  that  offenses,  even  if  primarily  directed 
against  individuals  and  not  against  the  king  or  the  community, 
are  nevertheless  violations  of  its  own  authority.^  As  early  as 
the  Merovingians  we  find  the  enactment  of  the  death  penalty  for 
robbery  ^  and  for  theft,'*  and  the  prohibition  of  private  settlement 
in  cases  of  theft.''  We  find  also  that  the  death  ])enalty  was  pre- 
scribed for  certain  cases  of  incestuous  marriage,''  and  that  perjury 
was  punished  by  the  cutting  off  of  a  hand  (the  oft'ender,  however, 
being  able  to  save  his  hand  by  a  payment  of  money)."  These 
public  punishments  seem  however  to  have  not  long  continued  in 
use ;  although  the  kings, ^  especially  the  early  Merovingians,  often 

et  seq.).  There  is  also  the  provision  that  the  thief  should  pay  his  "wer- 
peld"  as  a  "fredus"  ("Lex  PMs."  Ill,  1,  4).  This  also  explains  the  un- 
limited right  of  vengeance  in  such  cases,  according  to  some  passages. 
This  right  was  supplanted  by  public  punishment  (see  post). 

'"Regum  officium  est  proprium  facere  judicium  et  justitiam"  says 
Uicrnniimus  c.  23  C.  XXIII.  qu.  5.  Cyprianns  in  c.  40  of  the  same: 
"Rex  debet  furta  cohibere,  adulteria  punire,  impios  de  terra  perdere, 
parrieidas  et  pejerantes  vivere  non  sinere."  Cf.  also  Jnrcke,  "Hand- 
buch", I,  pp.  21,  22  note.  Waitz,  II  (2d  ed.)  pp.  155  et  seq.,  IV,  p.  447. 
"Cap.  Aquisgran."  e.  .'52,  33  {Perlz,  "Legg.",  I,  p.  95). 

2  The  indefinite  conception  of  "fidelitas  ",  fidelity  to  the  ruler  and  also 
to  the  law  enacted  and  administered  by  him  (to  which  conception  it  often 
appeared  that  no  limits  were  set),  undoubtedly  furthered  the  develop- 
ment of  the  pulilic  law.     Cf.  Waitz,  III,  p.  290. 

'  Cf.  "Childeberti  const."  a.D.  (ca.)  554  {Perlz,  "Legg.",  I,  p.  1). 

^  "Childeberti  II  et  Chlotarii  II  Pactum"  a.D.  593  n.  1  {Pcrtz,  "Legg.", 
I,  p.  3). 

^  Cf.  the  "Pactum"  (n.  3)  cited  in  the  preceding  note.  "Qui  furtum 
vult  celare  et  sine  judice  compositionem  acceperit,  latroni  similis  est." 

«"Childeberti  I'l  deer.",  a.  590.  n.  7. 

/"Childeberti  II  deer.",  a.  590.  n.  2  and  5.  This  latter  provision 
points  to  a  theological  origin. 

*  In  the  law  of  the  Lombards  there  was,  in  certain  cases,  alhnvcd  to  her 
relatives  a  right  to  punish  a  woman  criminally;  but  tlu^  criminal  law  of 
the  king  had  a  subsidiary  jurisdi(!tion.  Cf.  "Ed.  Roth."  c.  221,  also 
Pasquale  dd  Giudice,  p.  23. 

71 


§  25]  ROMAN   AND   GERMANIC    ELEMENTS  [Pakt  I,  Title  I 

acted  quite  arbitrarily  "  in  tlie  enactment  and  infliction  of  punish- 
ments, and  esj^ecially  under  the  Carolingians  certain  humiliating^ 
penalties  known  as  "  harmiscara  "  were  inflicted,  along  with  the 
royal  })an. 

Capitularies  of  the  Carolingians.  —  In  the  Capitularies  of  the 
Carolingians,  just  as  in  the  so-called  "  folk-laws  ",  ^°  intentional 
homicide  was  again  as  a  rule  punished  by  the  exaction  of  a  "  com- 
positio."  ^^  Most  of  all,  the  royal  power  was  interested  in  the 
suppression  of  feuds,^-  and  was  well  satisfied  if  the  party  injured 
would  be  content  with  merely  a  "  compositio."  It  made  use  of 
outlawry  to  compel  the  parties  to  make  an  amicable  settlement. 
We  find  that  public  punishment  was  inflicted  only  for  ro})bery,^^ 
a  crime  dangerous  to  the  community  at  large,  for  counterfeiting, 
false  witness^*  (falsification  of  documents),  and  perjury.^''  But 
even  in  these  cases,  the  penalty  of  cutting  off  the  hand  (the  mem- 
ber with  whieh  the  crime  had  been  committed)  could  be  avoided 
by  a  payment  of  money.^ 


16 


9  Waitz,  II,  pp.  151  et  seq.  As  to  "harmiscara",  cf.  the  same,  IV",  p. 
445. 

10  With  the  exception  of  the  "Lex  Visigothorum  ",  in  which  there  was 
a  significant  union  of  the  principles  of  the  Roman  and  Germanic  law. 

11  In  exceptional  cases,  the  death  penalty.  "Cap.  Aquisgran.'',  a.  817, 
c.  1  {Pertz,  "Legg."  I,  p.  210)  :  "Si  quis  aut  ex  levi  causa  aut  sine  causa 
hominem  in  ecclesia  interfecerit,  de  vita  conponat."  (Cf.  Waitz,  IV,  p. 
231.)  Furthermore,  in  other  especially  grave  cases  recourse  might  be 
had  to  the  Constitution  of  Childebert,  which  had  not  been  formally  re- 
pealed. Thus  it  is  stated  in  Cap.  a.d.  779  ("Francicum")  c.  8:  "Ut 
homicidas  aut  ceteros  reos,  qui  legibus  mori  debent,  si  ad  ecclesiam  con- 
fugeruit,  non  excusentur."  Cf.  also  c.  8  of  "Cap.  Langob."  Punishment 
of  murder  of  relatives  in  Cap.  a.  803  in  "Lex  Sal.",  n.  5  {Pertz,  "Leges", 
I,  p.  113)  :  "Si  quis  de  libertate  sua  fuerit  interpellatus,  et  timens  ne  in 
servitutem  cadat  aliquem  de  propinquis  suis,  per  quem  se  in  servitium 
casurum  timens  oceiderit,  id  est  patrem,  matrem,  patruelem,  avunculum 
vel  quemlibet  hujusmodi  propinquitatis  personam,  ipse  qui  hoc  perpe- 
traverit,  moriatur  .  .  .  ." 

12  Thus  King  Rothari  ("Ed.  Roth."  74)  stated  that  he  had  raised  the 
amounts  of  the  compositions  for  the  purpose  of  thereby  restraining  feuds. 
Cf.  also  the  memorial  of  the  bishops  to  the  king  in  tlie  year  829  {Pertz, 
"Leges",  I,  p.  340). 

""Cap.",  a.  779  ("Francicum")  c.  23;  "Cap.  Tic",  a.  801  n.  4 
{Pertz,  "Leges",  I,  p.  84);  According  to  the  earlier  Capitulary  (c.  10) 
the  death  penalty  was  provided  for  theft  in  a  church  by  means  of  burglary. 
As  to  the  execution  of  the  death  penalty,  cf.  "Cap.  Tic",  a.  801  c.  4 
{Pertz,  p.  84);  "Cap.  Aquisgran.",  813  c  11:  "Judices  atque  vicarii 
patibulos  habeant." 

"  "Cap.  Hlotharii  ",  I,  a.  832,  e.  10  {Pertz,  p.  361)  :  "manus  ei  ampute- 
tur." 

1^  The  writer  of  false  documents  originallj^  lost  his  thumb ;  later,  his 
right  hand. 

1«  As  to  the  ransom  of  the  hand,  see  Waitz,  IV,  pp.  435,  436.  Perjury 
was  very  prevalent  under  the  later  Carolingians. 

72 


ChaptF-R  II]  PRIMITIVE    GERMANIC    CRIMINAL   LAW  [§  26 

The  Royal  Ban.  —  Criminal  law  received  an  addition  that  was 
very  important,  displaying  more  of  the  characteristics  of  a  public 
punishment,  in  the  royal  ban,  "  bannus  regius."  ^'  Since  crimes 
against  the  person  of  the  king  were  regarded  as  crimes  against  the 
community  itself,  and  were  already  being  punished  according  to 
the  Roman  law  of  "  lese  majeste  ",^^  the  disobedience  of  a  royal 
command  also  had  the  appearance  of  a  direct  offense  or  injury  to 
the  king.  The  guilty  party  was  obliged  to  pay  the  king  the  sum 
of  sixty  "  solidi."  His  failure  to  make  this  payment  constituted 
a  separate  offense,  entailing  severer  penalties. ^^  The  penalty 
of  the  ban  covered  essentially  those  ofi'enses  which  we  to-day  would 
<-onsider  within  the  domain  of  the  police  jurisdiction,  the  martial 
law,  and  the  laws  pertaining  to  the  State  treasury.  However, 
its  application  was  not  limited  to  those  matters.  It  also  served 
the  purpose  of  suppressing  violent  feuds  ;  in  many  cases  it  imposed 
a  public  punishment  -"  in  addition  to  the  "  compositio  " ;  in 
contrast  to  the  feud,  it  extended  a  legal  protection  to  persons  and 
things  which  previously  had  enjoyed  no  such  protection  but 
nevertheless  seemed  to  require  it.-^ 

§  2G.  Other  Forms  of  Criminal  Punishment.  —  A  certain  penal 
power  was  also  possessed  by  the  husband  o\ev  his  wife,^  and  by  the 
head  of  the  household  over  the  children  under  his  control  {i.e.  in 
his  house).     ^Moreover,  the  master  had,  in  respect  to  his  slave,'- 

1^  As  to  the  royal  ban,  cf.  especially  PTaiiz,  II  (2d  ed.),  pp.  589  et 
seq.;   Ill,  pp.  271  et  seq. 

18  Cf.  Wnitz,  II,  pp.  149,  150  and  for  the  later  period,  VI,  p.  472. 

'"  For  illustration  of  the  acts  punishable  by  the  roj^al  ban,  cf.  e.g. 
Cap.  A.D.  811.  "de  exereitalibus  ",  c.  2-4  {Fcrtz,  p.  169,  170). 

2°  One  may  compare  the  eight  earl.y  cases  where  the  ban  was  used, 
mentioned  in  "Cap.  de  dorainico"  {Perlz,  pp.  34,  35).  In  cases  two, 
three,  and  four,  —  "Qui  injuste  agit  contra  viduas",  "De  orfanis", 
"Contra  pauperinos  qui  se  ipsos  defendere  non  possunt",  feud  and  self- 
redress  against  the  persons  mentioned  was  prohibited.  (Possibly  they 
apply  also  against  unjust  complaints,  because  of  the  danger  of  trial  by 
battle.)  In  cases  five,  six,  and  seven:  "Qui  raptum  facit,  hoc  est  qui 
femiuam  ingonuam  trahit  contra  vohintatom  par(>ntum  siiorum",  "Qui 
incendium  tacit  infra  jiatriain,  lioc  est  qui  inecndit  alterius  casam  aut 
scuriani",  "Qui  hari/Juit  facit,  id  est  qui  frangit  alterius  sepem  aut  por- 
tam  aut  casam  cum  virtute",  acts  which  had  previously  been  unlawful 
are  subjected  to  public  punishment.  Case  eight:  "Qui  in  hoste  non 
vadit"  has  reference  to  the  military  system.  Case  one:  "Dishonoratio 
sanct«?  eeelesijB"  has  to  do  with  the  protection  of  the  legal  institution  of 
the  Cliurch.  Cf.  "Cap.  Saxon.  Aquisgran."  a.  797  pr.  {Pertz,  p.  75); 
Add.  Vn.  to  "Lex  Bajuv.",  1  (ed.  Merkel,  Pcrtz,  "  Legg.".  III.  p.  477). 

'-'  Tluis  the  King  took  foreigners  also  under  his  protection.  Cf.  "  Epist. 
Karoli  M.  ad  Offam  regem  Marciorum  "  a.  796  (Walter,  "Corp.  J.  Germ.", 
II,  p.  125). 

'  Cf.  Tacitus,  "Germania",  c.  19. 

2  Jastrow,  "Zur  strafrechtlichen  Stellung  der  Sclaven  "  ;  Georg  Meyer  in 

73 


§26]  ROMAN   AND   GERMANIC    ELEMENTS  [Pakt  I,  Title  I 

a  power  of  criminal  punishment  ^  which  was  unHmited  ^  and  doubt- 
less was  often  exercised  with  great  severity.  The  folk-laws, 
moreover,  provided  a  public  i)unishment  for  a  slave  who  wronged 
a  third  party ;  this  was  either  absolute,  or  modified  ■'  to  suit  the 
case  where  the  master  would  not  surrender  the  slave. ^ 

Influence  of  the  Punishment  of  Slaves.  —  The  fact  that  punish- 
ments of  life  and  limb  were  often  emjiloyed  against  slaves  by  the  in- 
jured party  or  his  relatives,  although  this  was  gradually  prohibited 
by  the  royal  authority,  undoubtedly  had  great  influence  upon  the 
conception  of  the  nature  of  criminal  law.  This  influence  became 
apparent  later  when,  in  times  of  political  confusion,  the  number  of 
persons  who  were  absolutely  free  was  much  lessened  by  the  op- 
pression of  officials  and  great  magnates.  Punishments  which 
were  daily  inflicted  upon  slaves  would  soon  come  to  be  regarded 
as  not  absolutely  improper  for  free  men."  This  was  furthered 
by  the  fact  that  there  was  little  apparent  difference  between  the 
condition  of  the  oppressed  freemen  or  serfs,  and  that  of  the  slaves.* 

Effect  of  Loss  of  Freedom  by  Mass  of  the  People.  —  The   exor- 

" Zeitschrift  für  Rechtsgesehiehte,  germaiiistisclie  Abtheilung"  (1881),  p. 
85  et  seq. 

3  Cf.  Walter,  II,  §  388;  Waitz,  I,  p.  183;  Tacitus,  "Germania",  e.  25: 
"Verberare  servum  ac  vincuUs  et  opere  coercere  rarum :  oecidere  solent, 
non  disciplina  et  severitate,  sed  impetu  et  ira,  nisi  quod  impune  sit." 
Pasquale  del  Giudice,  p.  24,  25,  believes  that,  according  to  the  Lombard 
law,  the  master  exercised  a  despotism  over  his  slaves  that  was  subject  to 
no  legal  restrictions.  "An.  Liutpr."  (Neigebaur)  56:  "  Ipsi  vero  domini 
distringant  et  inquirant  servos  sicut  ipsi  amant"  ("Cap.  Pip"  a.  802,  c.  16, 
Pertz,  "Leges",  I,  p.  105).  The  criminal  power  of  the  master  was  origi- 
nally merely  an  incident  to  his  right  of  dealing  with  his  slaves  in  any  way 
he  wished. 

*  Cf.  concerning  the  punishments  used  against  those  who  were  not 
free ;  whipping,  castration,  cutting  off  of  the  hand,  putting  out  of  the  eyes, 
capital  punishment,  —  G.  L.  Von  Maurer,  "Geschichte  der  Fronhöfe  in 
Deutsehland"  (4  vols.  1862,  1863),  I,  p.  .533,  534.  In  the  beginning  there 
was  a  sharp  distinction  between  those  who  were  not  free  and  the  "liti" 
{i.e.  serfs),  although  the  latter  could  also  be  subjected  to  punishments  of 
life  and  limb,  while  free  men  were  penalized  with  money  {Maurer,  p.  535). 
However,  a  master  could  in  many  cases  ransom  his  slave. 

^  "Lex  Sal.",  12;  "Lex  Ribuar.",  58,  17  and  18;  "Lex  Alam.  Hloth.", 
38,  2. 

*  The  master  who  would  neither  assume  or  excuse  the  act  of  his  slave 
surrendered  the  offender  to  the  mercy  of  the  parties  injured,  i.e.  the  kins- 
men of  the  slain.  "Ed.  Roth.",  c.  152  :  "sic  tamen  ut  servus  vel  ancilla 
ad  occidendum  tradatur  ut  iiulla  sit  redemptio  aut  excusatio  mortis  ser\-i 
vel  ancillae."      Cf.  Pasquale  del  Giudice,  p.  29. 

^  Whipping  as  a  punishment  of  free  men  of  lower  rank  is  often  men- 
tioned in  the  time  of  the  Carolingians  (cf.  Waitz,  IV.  p.  436)  ;  e.g.  if  any- 
one without  sufficient  grounds  appealed  to  the  judgment  of  the  king 
(came  to  the  palace  of  the  king).  "Pippini  cap."  7  {Pertz,  p.  31)  ("Si 
major  persona  fuerit,  in  regis  arbitrio  erit"). 

*  Cf.  the  especially  important  development  in  these  matters  in  the 
Anglo-Saxon  law,  in  J  astro  w,  pp.  43  et  seq. 

74 


Chapter  II]  PRIMITIVE    GERMAXIC   CRIMIX.Ai   LAW  [§  26 

bitant  amount  of  the  damages  was  far-reaching  in  its  effect. 
Thirty,  forty  or  fifty  "  sohcli  "  were  often  exacted  for  injuries, 
and  in  cases  of  homicide  these  amounts  were  greatly  exceeded. 
Thus  the  "  wergeld  "  for  killing  a  free  Frank  was  two  hundred 
"  solidi."  These  sums  were  equivalent  to  the  value  of  hundreds 
of  cattle.^  He  who  could  not  pay  these  amounts  was  reduced 
to  a  condition  of  bondage  for  debt,^"  a  condition  which  often  re- 
sulted in  permanent  sla^'ery  (even  if  it  were  not  such  from  the 
beginning).  He  also  often  became  a  victim  of  the  unrestrained 
vengeance  of  the  injured  family.  "  Quod  si  raptor  (one  who 
carried  away  a  woman)  solutionem  .  .  .  unde  soKere  non  habuerit, 
puellae  parentibus  adsignetur,  ut  faciendi  de  eo  quod  ipsi  maluerint, 
habeant  potestatem."  ^^  This  vengeance  (slaying)  had  to  be 
exercised  publicly  in  order  to  be  legally  justifiable.  Among  the 
Franks,  for  example,  the  corpse  was  placed  upon  a  "  bargus  ", 
a  "  clida  ",  a  structure  similar  to  a  gallows.^-  Thus  the  manner  of 
putting  to  death  did  not  difier  so  very  much  from  the  later  execu- 
tions by  the  public  authorities.  This  was  especially  the  case 
when  the  executions  were  arranged  and  carried  out  with  great  dis- 
play by  some  individual  possessed  of  great  power  and  prominence. 
Thus  private  compensation  often  passed  into  public  punishment. 
Furthermore,  in  those  frequent  cases  in  which  unimportant 
freemen  {e.g.  those  who  did  not  possess  others  as  serfs  or  slaves) 
were  unable  to  pay  the  large  amounts  exacted  as  damages,  some 
form  of  public  punishment,  e.g.  corporal  punishment  or  even  muti- 
lation, would  readily  seem  to  be  appropriate.^^  This  was  furthered 
by  the  fact  that  these  punishments  ^^  would  appear  less  severe  ^^ 
than  being  reduced  to  a  condition  of  bondage  for  debt.'^ 

ä  Waitz,  II,  p.  614.  Cf.  also  Roth,  "Geschichte  d.  Forst-  u.  Jagdwesens 
in  Deutschland",  1879,  pp.  21  et  seq. 

'"  Grimm,  pp.  329  el  seq. 

""Lex  Burg.",  12,  3. 

12  Cf.  Sohm,  "Process  der  Lex  Salica",  pp.  178,  179,  and  Pasqualc  del 
Giudice,  p.  56.  The  "Lex  Salica"  protected  the  guilty,  before  the  execu- 
tion took  place,  by  a  number  of  formalities  calculated  to  induce  the  rela- 
tives to  accept  a  paj^ment  and  to  bring  about  a  ransom  by  any  third 
party  who  was  willing.  The  famous  title  of  "Lex  Sal.",  "De  chreno 
cruda"  has  reference  to  this. 

"  Dnhn,  "  Westgothische  Studien",  p.  1.56. 

1^  Waitz,  III,  p.  26.5. 

1*  We  also  find  tliat,  in  tlie  criminal  procedure,  legal  rules  which  earlier 
were  only  applied  to  the  disadvantage  of  the  unfavored  classes  were  later 
applied  to  the  privileged  classes.  Thus,  according  to  the  earlier  Banibi-rg 
code,  only  a  non-citizen  could  be  restrained  and  imprisoned.  In  tho 
course  of  the  1400  s  this  distinction  ceased  to  exist :  Bruiincnmeister,  "  Die 
Quellen  der  Banibergensis"  (1879),  p.  44. 

'®  The  criminal  law  of  the  West  (loths  was  to  a  certain  extent  typical 

75 


§26]  ROMAN   AND   GERMANIC   ELEMENTS  [Part  I,  Title  I 

Under  the  Carolingiansthe  idea  of  public  punishment  was  clearly 
apparent  only  in  cases  of  offenses  against  the  king.  In  such  cases 
we  find  capital  punishment,  mutilation,  and  confiscation  of  prop- 
erty. But,  as  the  great  mass  of  the  people  lost  more  or  less  of  their 
freedom  and  were  reduced  to  a  condition  of  poverty,  this  idea 
continued  to  gain  in  prominence.  Moreover,  it  found  a  real 
ally  in  a  power  which  knew  but  one  distinction  of  rank  —  the 
Church. 

of  the  criminal  law  of  the  later  Middle  Ages,  however  with  certain  des- 
potic additions.  Punishments  which  elsewhere  were  applied  only  to  slaves, 
especially  flogging,  were  (although  many  distinctions  of  rank  were  made) 
also  applied  largely  to  free  men.  The  law  of  the  West  Goths  sought  a 
better  conception  of  the  subjective  side  of  crime.  But  herein  it  often 
lapsed  into  provisions  of  a  false  moralizing  or  theological  nature  and  also 
an  erratic  zeal  for  deterrence  and  punishment.  It  combined  in  a  peculiar 
manner  the  Roman  and  German  law.     Cf.  also  Dahn,  pp.  141  et  seq. 


76 


TITLE   II.     THE   MIDDLE   AGES 


CHAPTER  III.     THE   CHRISTIAN   CHURCH'S   LAW. 

CHAPTER    IV.     GERMANIC   LAW   IN   THE    LATER   MID- 
DLE  AGES. 

CHAPTER      V.     SCANDINAVIA    AND    SWITZERLAND    IN 
THE   LATER  MIDDLE   AGES. 

CHAPTER    VI.     FRANCE  IN  THE  LATER  MIDDLE  AGES. 


77 


Chapter    III 


THE    CHRISTIAN    CHURCH'S    LAW 


§  27.  Excommunication  as  the  ;  §  30. 
Foundation  of  the  Criminal 
Law  of  the  Church.  Com- 
prehensive Nature  of  the 
"Law  of  Penance."  Other  §  3L 
Characteristics.  Influence 
upon  the  Criminal  Law  of 
the  State. 

§  28.  The  Disciplinary  Law  of  the 
Church.  Its  Similarity  to 
the  Criminal  Law  of  the 
State.  §  32. 

§  29.  Growth  of  Criminal  Power  of 
the  Church.  Privilege  of 
Clergy.  Union  of  the 
Criminal  Laws  of  the 
Church  and  State  under 
the  Frankish  Kings. 


Influence  of  Right  of  Asylum 
Possessed  by  the  Church. 
Acquisition  by  Church  of 
Temporal  Jurisdiction. 

Variation  in  Extent  of  Juris- 
diction of  the  Church  at 
Different  Periods.  "Poe- 
nse  Medicinales"  and  "Poe- 
nas  Vindicativse."  Defects 
of  Criminal  Law  of  the 
Church. 

Heresy.  Ideal  of  Divine 
Justice  and  the  Mosaic 
Law.  Ultimate  Effect  of 
the  Criminal  Law  of  the 
Church. 


§  27.  Excoirununication  as  the  Foundation  of  the  Criminal 
Law  of  the  Church.  —  Every  association  has  tlie  natural  right 
to  expel  those  of  its  members  who  will  not  conform  to  its  general 
rules. ^     If  denied  this  right,  it  is  either  forced  to  endure  every 

1  Concerning  the  matter  contained  in  this  chapter  the  following  wTiters 
may  be  consulted:  Eichhorn,  "Grundsätze  des  Kirchenrechts"  (2  vols. 
1831)  (cf.  also  E/f/f/fo?-«,  "Deutsche  Staats- und  Rechtsgeschicht(>"  (öth 
ed.).  1,  §§  10."),  10(),  108  et  seq.)  ;  Du  Boys,  "Histoire  du  droit  criminel  des 
peuples  anciens"  (1845)  ;  Du  Boys,  "Histoire  du  droit  criminel  des  peuplcs 
modernes";  Fauslin  Helle,  "Traite  de  l'instruction  criminelle"  (I,  1800, 
2d  ed.);  Dove,  "Untersuchungen  über  die  Sendgerichte",  in  the  "Zeit- 
schrift für  deutsches  Recht"  (Vol.  19,  pp.  321  et  seq.) ;  {cf.  also  Dore  in  the 
"Zeitsclu-iftfür  Kirchenrecht,"  IV,  pp.  1  et  .'ieq.,  pp.  157  et  seq.,  V  (I860)  pp. 
1  et  seq.)  ;  Eck,  "De  natura  poenarum  secundum  jus  canonicum"  (I860)  ; 
Nie.  München,  "Das  kanonische  Gerichtsverfahren  und  Strafrecht"  (2 
vols.  1865,  1866);  Wnitz,  "Deutsche  Verfassungsgeschichte"  (2d  ed., 
Vols.  Ill  and  IV);  Sohm,  in  the  '■Zeitschrift  für  Kircliensrecht "  (1870), 
pp.  248  et  seq.:  Richter,  "  Lehrlnich  des  katholischen  und  evangelischen 
Kirchenrechts"  (7th  ed.  prepared  by  Dove,  1874);  Edgar  Löning, 
"Geschichte  d.  deutschen  Kirchenrechts"  (Vols.  1  and  2,  1878);  Edic. 
Katz,  "  P]in  Gruiidriss  des  kanonischen  Strafrechts"  (1881)  ;  Von  Holtzcn- 
dorff,  in  his  "Handbuch  des  deutschen  Strafrechts",  I,  pp.  40-50.     [For 

79 


§  27]  THE   MIDDLE    AGES  [ParT  I,  TiTLE  II 

variety  of  disorder,  or  else  it  must  })e  given  the  right  oi  direct 
coercion,  or  there  must  be  placed  at  its  disposal,  for  the  compul- 
sory enforcement  of  its  orders,  the  power  of  the  State. 

The  Christian  Church,  in  its  early  periods,  was  constantly 
defending  itself  against  the  State.  It  tolerated  the  State  only 
as  a  necessary  evil.  To  avoid  subjecting  itself  to  further  perse- 
cution, it  forbade  its  adherents  to  litigate  before  the  civil  authori- 
ties.^ It  is  self-evident  ^  that  the  only  weapon  and  defense  against 
refractory  members  possessed  by  such  an  organization  was  expul- 
sion. To  this  fact  there  may  be  attributed  the  essential  char- 
acteristics of  the  criminal  law  of  the  Church.'* 

The  oldest  punishment  of  the  Church  is  merely  excommuni- 
cation, which  when  applied  to  the  Clergy  necessarily  amounted 
to  dismissal ;  since  expulsion  from  the  association  carried  with 
it  removal  from  offices  held  in  the  association.  The  association 
in  question  was,  or  appeared  to  be,  of  vital  importance  for  the 
welfare  or  woe  of  the  individual.  Consequently,  instead  of  per- 
mitting himself  to  be  expelled  from  the  association,  he  would 
prefer  to  subject  himself  voluntarily  to  certain  disadvantages  and 
sacrifices,  if,  in  this  way,  he  could  undo  the  effects  of  his  disobedi- 
ence. Moreover,  the  association,  since  its  value  depended  upon 
its  numbers,  would  avail  itself  of  expulsion  —  at  least  final  and 
permanent  expulsion  —  only  in  extreme  cases.  Thus  the  oldest 
punishments  of  the  Church  came  to  consist  of  either  a  complete 
or  a  partial  exclusion  from  the  Church  itself,  or,  in  a  milder  form, 
only  from  the  sacrament  or  from  office.  There  were  also  other 
punishments,  the  so-called  penance,  the  fasts,  self-scourging  and 
allowing  oneself  to  be  scourged,  the  wearing  of  a  penitential  gar- 
ment, pilgrimages,  etc.  Moreover  the  gifts  of  money  and  valu- 
ables, which  later  were  given  to  good  works  and  to  the  purposes 
of  the  Church,  were  originally  voluntary  gifts  by  which  the  giver 

additional  and  later  literature,  see  :  Aichner,  "Compendium  juris  ecelesias- 
tiei"  (Brixen,  1890);  Bouix,  "Traetatus  de  principiis  juris  canonici" 
(Paris,  1882);  Brosij,  "  Kirchenreeht "  (Berlin,  1890);  Cavagyiis,  "Institu- 
tiones  juris  publici  ecclesiastiei "  (Roma,  1912)  ;  Phillips,  "Leln-buch  des 
Kirchenrechts"  (Regensburg,  1872-1889);  Snnt,  " Prielectiones  juris 
canonici"  (Regensburg,  1886);  Albrecht,  "Verbrechen  und  Strafen,  als 
Seheidungsgrund  nach  evangelischen  Kirchenrecht"  (Berlin,  1903); 
L.  Kahn,  "Etude  sur  le  delit  et  la  peine  en  di'oit  canon"  (Paris,  1898); 
Silbernagl,  "Lehrbuch  des  katholischen  Kirchenrechts"  (Berlin,  1913); 
Hinschius,  "Kirchenrecht"  (1869-1897).      (Von  Thot)]. 

^N.  T.,  I.  Corinthians,  vi,  1  and  2  el  seq.  Cf.  Du  Boys,  "Histoire  du 
dr.  crim.  des  peuples  anciens",  pp.  610  et  seq. 

3  N.  T.,  Matthew,  xviii,  15-17. 

*  Cf.  also  Edg.  Löning,  I,  pp.  252  et  seq. 

80 


Chapter  111]  THE   CHRISTIAN    CHURCH's   LAW  [§  27 

forestalled  his  expulsion  from  the  Church  or  secured  his  rein- 
statement. 

Comprehensive  Nature  of  the  Law  "of  Penance."  Other  Char- 
acteristics. —  The  duties  of  the  Church  theoretically  embraced 
the  entire  life  of  the  individual.  Not  only  belief  but  also  morals 
were  subject  to  the  authority  of  the  Church ;  under  minute  in- 
spection, every  act  or  omission  acquired  a  moral  sisjnificance. 
Thus  the  criminal  law  of  the  Church  was  unlimited  in  its  scope. 
And  so  it  actually  appeared  in  the  penal  provisions  in  use  in  the 
Middle  Ages.^  Their  rules  extended  to  excesses  of  every  char- 
acter, to  passions  such  as  greed,  pride,  envy,  and  even  to  unclean- 
lines'S.  It  was,  however,  only  a  system  of  moral  law,  a  law  aim- 
ing to  bring  about  a  reconciliation  of  the  guilty  with  God  and  the 
Church,  that  assumed  this  wide  jurisdiction.  This  law  could 
be  applied  only  in  cases  of  grave  and  notorious  offenses,  or  by 
virtue  of  the  voluntary  confession  of  the  guilty ;  which  might 
be  procured  through  the  confessional.  The  characteristics,  there- 
fore, of  the  so-called  "  law  of  penance  ",  the  churchly  penalties 
which  were  to  ensure  the  repentance  and  reformation  of  the  offender 
were :  ßrst,  a  lack  of  definiteness  in  the  acts  which  incurred  these 
penalties,  and  definiteness  only  in  that  practically  they  were 
limited  to  the  most  important  and  frequent  offenses,  in  any 
epoch  or  locality ;  secondly,  limitations  due  to  the  lack  of  an 
effective  criminal  procedure.^ 

Influence  upon  the  Criminal  Law  of  the  State.  —  This  portion 
of  the  criminal  law  of  the  Church,  founded  as  it  was  directly  upon 
morality,  had  only  a  limited  influence  upon  the  law  of  the  State 
relative  to  crimes.  In  the  first  place,  the  different  penalties 
applicable  to  acts  also  forbidden  by  the  temporal  law  expressed 
the  views  of  the  Church  as  to  the  varying  importance  of  these 
acts.  In  the  next  place,  an  act  for  which  the  Chnrch  did  not  inflict 
a  penalty  at  all  was  given  the  character  (in  the  \iew  of  the  Church) 
of  not  being  generally  reprehensible.  These  moral  \aluations 
of  acts,  and  especially  the  latter   (by  which  certain  acts  were 

^  Cj.  Wasser  schieben,  "Die  Bussordnungen  der  abendländischen  Kirche 
nebst  rochtsgeschiehtlichcr  Kiuk-itung"  (1851) ;  "Poenitentiale  Remense" 
in  Kdlz,  pp.  161-202  (from  the  700s). 

^  However,  the  Church,  in  the  so-ealled  "Sendgerielite"  in  the  CaroHn- 
gian  period,  and  also  later,  as  a  matter  of  fact  exeiunled  the  priiieipU'  of 
inflicting  penanc(>  only  for  those  sins  which  were  eitlier  notorious  or  freely 
acknowledged.  It  bound  by  oath  a  number  of  the  members  of  the  con- 
gregation to  lay  information  of  sins  or  offenses  which  might  be  known  to 
them,  and  it  compelU'd  tlii'  accused  either  to  free  himself  upon  oath  or  to 
undergo  penance  or  punishment;    cf.  Dove,  "Untersuchungen",  p.  356. 

81 


§28]  THE    MIDDLE    AGES  [PAUT  I,  TiTLi:  J I 

re<!:ar(led  as  not  deservinfj  punishment),  potentially  exerted  an 
influence  upon  the  temporal  law.  But  this  portion  of  the  criminal 
law  of  the  Church  was  naturally  widely  separated  from  the  tem- 
poral law.  Penance  was  inflicted  by  the  Church  without  regard 
to  whether  or  not  temporal  punishments  were  inflicted  upon  the 
oft'ender;  the  essential  purpose  of  penance  was  the  oft'ender's 
reformation. 

§  28.  The  Disciplinary  Law  of  the  Church.  —  The  requirements 
of  so  extensive  an  organization  as  the  Christian  Church  could 
not  be  met  by  a  criminal  law"  applicable  only  in  cases  where  there 
was  a  voluntary  confession  of  guilt  or  where  the  offense  chanced 
to  be  notorious.  The  inadequacy  of  such  a  law  was  especially 
evident  in  its  bearing  on  the  non-performance  of  their  duties  by 
servants  of  the  Church.^  Thus,  in  addition  to  that  indefinite 
system  of  penance  above  mentioned,  there  grew  up  in  the  Church 
a  system  of  criminal  law,  which  was  based  upon  definite  ideas 
of  the  various  offenses,  and  also  reached,  by  a  special  criminal 
procedure,  acts  that  were  neither  notorious  nor  voluntarily 
admitted. 

Its  Similarity  to  the  Criminal  Law  of  the  State.  —  In  these 
offenses  punishment  assumed  a  totally  different  character.  It 
was  not  limited  in  its  application  to  offenders  whom  it  might 
hope  to  lead  to  repentance,  conversion,  and  submission  to  the 
Church ;  it  could  also  operate  against  others  —  in  extreme  cases 
even  by  deterrence."'     Here  the  criminal  law  of  the  Church  is 

'  Herein  it  really  acted  in  cooperation  vnth  the  exemption  of  the  clergy 
from  the  jurisdiction  of  the  courts  (see  post).  The  disciplinary  punish- 
ments of  the  clergy  took  the  place  of  State  punishment,  since  also  in  ex- 
treme cases  the  Church  would  expel  the  guilty  from  the  clergy  (to  degrade 
him),  and  deliver  him  to  the  civic  power  for  punishment.  Cf.  Innocent 
III  in  Cap.  17,  X  "De  judiciis",  2,  1:  " Prjpcipiatis  exparte  nostra 
Prselatis,  ut  laicis  de  clerieis  conquerentibus  plenam  faciant  justitiam 
exhiberi  .  .  .  ne  pro  defectu  justitise  clerici  trahantur  a  laicis  ad  judicium 
seculare  .  .  ."  The  ci\ic  power  had  no  reason  to  take  offense  at  the  ex- 
treme mildness  of  the  punishments  of  the  clergy.  Cf.  Eichhorn,  "Grund- 
sätze", I,  p.  153.  C.  3  X,  "De  erim.  falsi",  5,  20  (by  Urban  111,  1186) 
even  provided  branding  in  one  case  as  a  punishment  for  the  clergy. 

2  Cf.  e.g.  c.  1,  X,  5,  26  "...  ut  poena  illius  aliis  terrorem  injiciat,  ne  de 
cetero  contra  Romanam  Ecclesiam  in  talia  verba  prorumpat."  The 
purpose  of  deterrence  is  very  apparent  in  the  well-known  pro\'ision  that 
heretics  who  again  became  such,  even  if  they  later  renounced  their  error, 
should  irrevocably  be  turned  over  to  the  civic  power  for  punishment, 
although  "si  postmodum  poeniteant,  ut  poenitentiie  signa  in  eis  apparue- 
rint  manifesta  ",  the  sacrament  of  the  Last  Supper  was  not  denied  them. 
The  Church  however  at  this  time  did  not  require  a  judgment  against 
heretics.  But  the  judgment  of  the  civic  courts  against  those  whom  the 
Church  had  adjudged  as  heretics  was  a  mere  formality.  The  Church 
absolutely  demanded  and  obtained  execution  or  the  infliction  of  a  punish- 

82 


Chapter  III]  THE  CHRISTIAN  CHURCH's  LAW  [§  29 

closely  allied  to  the  criminal  law  laid  down  by  the  civic  community. 
The  culpable  act  was  judged  not  only  according  to  its  moral 
significance,  but  also  according  to  certain  external  characteristics 
and  effects.  Since,  in  fact,  the  Church  had  means  at  its  disposal  ^ 
to  carry  out  its  will  and  commands,  it  was  even  able,  to  a  certain 
extent,  to  take  the  place  of  the  then  somewhat  defective  political 
administration  of  criminal  justice.  Since  morality  was  also  the 
ultimate  basis  of  the  State's  criminal  law,  the  Church  could  take 
the  standpoint  that,  if  the  State  was  lax  in  the  punishment  of 
certain  acts  in  which  the  Church  was  especially  interested, 
although  they  in  no  way  constituted  violations  of  the  commands 
of  the  Church,  it  would  itself  undertake  the  punishment  of  these 
acts.  Moreover,  the  influence  of  a  powerful  religious  organiza- 
tion which  has  a  firm  hold  upon  the  entire  people  is  such  that  it 
can  easily  cause  the  civic  community  to  punish  acts  which  it  has 
heretofore  left  unpunished.  The  Church  then  turned  over  to 
the  civic  power  many  cases  formerly  punished  by  itself,  since  the 
civic  community  now  punished  them  adequately.^ 

§  29.  Growth  of  Criminal  Power  of  the  Church.  Privilege  of 
Clergy.  —  Though  the  Church's  criminal  law  thenceforth  was 
still  essentially  only  that  of  a  tribunal  dealing  with  moral  conduct, 

ment  of  a  permanent  nature,  without  allowing  a  new  examination  of  the 
judgment  of  guilt.  Cf.  e.  2,  4,  18  in  VI.  "  De  haereticis  ",  5,  2  ;  J^gidius 
Bossius,  "Pract  erim.",  Tit.  "De  haereticis",  n.  35,  and  Du  Boys,  "His- 
toire  de  dr.  cr.  des  peuples  modernes",  V,  pp.  95,  96.  The  view  that 
"poenae  \andic'ativae  "  might  be  applied  and  were  applied  only  to  the  Clergy 
cannot  be  accepted  (Katz,  pp.  33  et  seq.). 

^  As  is  well  known,  the  chief  sanction  used  by  the  Church  was  excom- 
munication. The  Church  even  prohibited  business  transactions  with  the 
excommunicated,  although  in  the  l-)eginning  this  was  so  only  where  the 
punishment  was  "excommunicatio  major."  Cf.  Richter  (Dove),  "Lehr- 
buch" §  214,  note  13.  Excommunication  carried  with  it  incapacity  to 
bring  a  suit  or  to  act  as  a  witness,  and  incapacity  to  fill  the  office  of  judge 
even  of  a  civic  tribunal.  Cap.  ö  X.  2,  25,  —  c.  7  X.  2,  1  ;  c.  38  X,  2,  20. 
According  to  the  ordinance  of  Emperor  Frederick  II.  (.\.d.  1220  c.  7, 
Perlz,  "Alonum."  IV,  p.  236),  civil  attainder  attached  to  those  remaining 
in  "greater"  excommunication  for  a  j'ear,  "non  revocanda,  nisi  prius 
excommunicatio  revocetur."  A  French  judgment  of  the  1300  s  ordered 
that  anyone  who  should  see  the  party  who  had  been  e.xcommunicated 
"crachat  contre  lui"  {Faustin  Helie,  I,  N.  199). 

''  This  explains  the  fact  that  those  cases  in  which  mention  is  made  of  a 
"delictum  mixti  fori"  do  not  form  a  separate  class,  and  also  the  fact  that 
sometimes,  when  the  punishments  of  the  (^hurch  were  rather  in  the  nature 
of  mere  penance,  and  for  this  reason  did  not  seem  to  the  civic  criminal 
authorities  to  be  sufficient,  the  latter  paid  no  attention  to  the  punishments 
which  had  already  been  inflicted  by  the  Church  ;  cf.  Richter  (Dorc),  "Lehr- 
buch", §  222.  Moreover  (except  in  case  of  a  "delictum  mixtum"),  where 
the  punishment  seemed  to  the  Church  to  be  insufficient,  the  Cluu-ch 
appealed  to  the  civil  authorities  for  a  sharper  punishment  of  the  offender ; 
cf.  c.  8,  X,  "De  foro  comp.",  2,  2. 

83 


§  29]  THE  MIDDLE  AGES  [Part  I,  Title  II 

yet  the  Church  In  the  Middle  Ages  went  far  l)eyond  the  bounds 
appropriate  for  a  reUgious  organization.  This  requires  for  its 
explanation  a  review  of  its  historical  relation  to  the  State. 

In  the  Roman  Empire,  as  soon  as  the  predominance  of  the 
Christian  religion  was  definitely  established,  the  Church  began  its 
efforts  to  make  the  clergy  independent  of  the  civic  authorities 
by  means  of  jurisdictional  exemption.  But  against  the  firmly 
established  and  fully  developed  judicial  system  of  the  Roman 
State,  it  failed  to  make  headway.  An  enactment  ^  of  Valens, 
Gratian,  and  Valentinian  (a.d.  376)  expressly  specified  that  every 
criminal  action  involving  a  civil  crime  should  be  tried,  not  b}'  the 
synod,  but  by  the  civic  judge.  The  same  rule  obtained  in  the 
law  of  Justinian,^  although  certain  imperial  enactments  during 
the  intervening  period  manifested  apparently  a  greater  compli- 
ance with  the  claims  of  the  Church.^ 

Union  of  the  Criminal  Laws  of  the  Church  and  State  tinder  the 
Frankish  Kings.  —  Under  the  Prankish  monarchy,  however,  the 
Church  obtained  a  complete  jurisdictional  exemption  for  all  cases 
essentially  criminal.  As  early  as  the  500  s,  the  chief  authorities 
of  the  Church^  were  practically  exempt  from  the  civil  jurisdic- 
tion. In  cases  of  high  treason,  in  w^hich  the  death  penalty  would 
ordinarily  be  inflicted,  there  were  applied  to  bishops  ^  only  the 
Church  penalties  (deprivation  of  office,  excommunication,  banish- 

1  L.  23,  "Cod.  Theodos.",  16,  2. 

2  Nov.  83  pr.,  §§1  and  2.  Where  a  member  of  the  clergy  was  pro- 
nounced guilty  by  the  judge  of  a  civic  tribunal,  he  was  merely  deprived  of 
his  clerical  character  by  the  bishop  before  the  execution  of  the  sentence. 
A  tribunal  of  the  Church  took  cognizance  only  of  "crimina  ecclesiastica." 
Concerning  the  bishops,  it  was  merely  decreed  by  Nov.  123  c.  8,  that  no 
proceedings  should  be  taken  against  them  by  the  civil  judge  except  by 
special  order  of  the  Emperor. 

3  Cf.  L.  12,  L.  41,  L.  47;  C.  Theodos.  16,  2.  Perhaps  (as  suggested  by 
Gothofredus  and  Eck,  p.  5,  note  4)  these  passages  merely  have  reference  to 
insignificant  offenses,  in  which  a  disciplinary  punishment  seemed  to  be 
suificient.  In  L.  23,  eod.,  the  jurisdiction  of  the  Church  seems  to 
extend  only  to  offenses  against  discipline. 

*  Cf.  Du  Boys,  I,  pp.  404  et  seq.  and  especially  Sohm  in  Dove's  "Zeit- 
schrift für  Kirchenrecht  ",  IX,  pp.  248  et  seq. 

5  However,  the  royal  despotism  was  at  times  not  hindered  in  the  use  of 
other  measures  of  violence.  Loning,  II,  pp.  516  et  seq.,  is  of  the  opinion  that 
the  Chiu-ch  did  not  possess  an  actual  jurisdictional  exemption,  and  that 
rather  it  was  only  a  custom  (and  indeed  one  not  always  observed)  to  bring 
a  complaint  and  secure  a  judgment  against  bishops  in  the  Council  before 
subjecting  them  to  the  judgment  of  the  ci^^c  coiirts.  But  as  a  matter  of 
fact  the  judgment  of  the  Council  woidd  be  reallj'  the  determining  factor. 
The  cases  in  which  the  royal  authorities  made  a  direct  prosecution  {i.e. 
without  first  bringing  a  complaint  before  the  Council)  seem  to  be  invariably 
cases  of  "lese  majeste  ",  and  in  such  cases,  exceptional  measures  are  often 
applied. 

84 


Chapter  III]  THE  CHRISTIAN  CHURCh's  LAW  (§  29 

ment  to  a  cloister).  The  kings  appeared  before  the  councils  as  ac- 
cusers of  the  bishops.^  Chlothar  II,  by  an  enactment  '  of  a.  d. 
614,  rendered  all  the  lower  clergy  exempt  from  civic  punishment.^ 
In  its  place  there  was  applied  to  clericals  the  Church's  discip- 
linary powers.  Thus  in  the  "  Edictum  Pistense  "  (a.D.  8ü4)  ^  it  is 
stated :  ^°    "  Et  de  tali  causa  unde  seculares  homines  vitam  per- 

^  CJ.  "L.  Bajuv.",  1, 10:  ".  .  .  episeopussi  convictus crimine negare non 
possit,  tune  secundum  canones  ei  judicetur,  si  talis  culpa  sit,  ut  deponatur 
aut  exilietur  .  .  .";  I,  12 :  "De  ceteris  causis,  diaconus  vel  clericus  ab 
episeopis  secundum  illorum  canones  judicentur." 

'  Pertz,  "Leges",  I,  p.  14. 

*"Ut  nullus  judicum  de  quolibet  ordine  elericos  de  civilibus  causis 
praeter  eriminalia,  per  se  distringere  aut  damnare  pra?sumat,  nisi  eo 
convincitur  manifestus,  excepto  presbytero  et  diacono.  (^ui  \ero  eon- 
victi  fuerint  de  crimine  capitali,  juxta  canones  distringantur  et  cum  ponti- 
fieibus  examinentur."  Sohm  explains  this  provision  correctly.  All  Clergy 
were  punished  by  the  disciplinary  criminal  law  of  the  Churcli  ("secundum 
canones"  since  the  civic  law  of  the  Church  was  the  constitutions  of  the 
Roman  emperors)  by  their  authorities  ("cum  pontificibus"  =  "a  ponti- 
ficibus").  It  was  only  in  respect  to  the  lower  class  of  the  Clergy  (includ- 
ing the  "deacon"  and  those  beneath)  that  the  civic  judge  had  the  right  of 
first  trial  ("districtio").  The  well-known  "Constitution"  of  Emperor 
Frederick  II.  (Auth.  "Statuimus"  Cod.,  1,  3,  "De  episeopis  (>t  clerieis") 
merely  enforced  anew  a  right  which  had  long  existed  previously.  The 
exponents  of  the  Roman-Canon  Law  often  denied  (although  on  the 
whole  ^vithout  practical  results)  that  the  clergy  were  subjects  of  the  rulers 
of  the  country,  and  denied  therefore  that  they  could  commit  the  crime 
of  "lese  majeste"  against  them.  In  this  light  the  clergy  became  in  fact 
a  State  within  the  State.  Cf.  (later)  Jul.  Clarus,  §  "Laesae  majestatis 
crimen",  n.  7. 

9  c.  20  (Pertz,  p.  497). 

'"The  mild  punishment  of  the  clergy  (cf.  the  so-called  "Const,  paeis 
Dei"  Heinrich  IV,  a.d.  1085,  Pertz,  "Leges",  II,  p.  58  :  "Unde  laici  deeol- 
lentur,  inde  clerici  degradentur ;  unde  laici  detruncantur,  inde  clerici  ab 
officio  suspendantur  et  consensu  laicorum  crebris  ieiuniis  et  verberibus 
usque  ad  satisfactionem  affligantur  ")  ;  the  provisions  exempting  the  clergy 
from  the  criminal  jurisdiction  of  the  civic  authorities  (in  the  "Sententia 
Henrici  regis"  a.d.  1234,  Pertz,  "Leges",  II,  p.  302);  the  fact  that  the 
tonsure  was  often  conclusively'  accepted  as  proof  of  being  one  of  the  clergy 
(cf.  concerning  this  and  concerning  the  claim  of  the  Church  to  base  its  own 
jurisdiction  hereon,  c.  12  in  Sexto.  "Do  sent,  excomm.",  5,  11) ;  and  the 
fact  that  this  jurisdictional  exemption  was  frequently  conferred  (the  bish- 
ops gladly  conferred  it  since  their  power  was  thereby  increased)  —  all 
these  circumstances  were  the  causes  of  numerous  abuses.  Chief  among 
these  abuses  was  the  fact  that  many,  in  order  to  render  themselves  secure 
from  civic  punishment  on  some  one  occasion,  recei\ed  the  tonsure  and 
thereafter  led  worldly  lives.  On  the  other  hand,  even  th(>  I'opes  were 
obliged  to  maintain  the  civic  jurisdiction.  Cf.  c.  27  (Ilonorius  111)  X.  5, 
33.  Also  c/.  "  Schwab(>ns])i('ger'  (L.)  225.  R.  rori  Freising,  "  l^indwchts- 
buch  ",  c.  168:  "Pfaffeiui  dye  nicht  beschornn  sein  vnnd  nicht  pfätllieh 
gewantt  an  yn  tragenn,  vnd  fürentt  sy  messer  oder  swert  oder  annder 
waflfenn  oder  vindet  man  sy  in  di>m  frauenhaus  oder  in  ainem  leuthaus,  dye 
sol  man  richten  als  ainem  andernn  layenn.  ..."  There  is  a  somewhat 
different  provision  in  R.  von  Frcising,  "Stadtreehtsbuch  ",  c.lG.  Concern- 
ing the  later  custom  in  Italy,  cf.  especially  Dcciatjus,  "Practica  crini.", 
IV,  c.  9  n.  106  :  "Ut  clericus  possit  a  laico  detineri  et  puniri  sex  requirun- 
tur.     Primum  quod  non  incedat  in  habitu  et  tonsura.     Secundum  quod 

85 


§  29]  THE   MIDDLE  AGES  [Pakt  I,  Title  II 

dunt,  inde  clerici  ecclesiasticum  ^radiim  amittunt."  '^  More- 
over, as  is  well  known,  with  the  Frankish  kings  began  a  far-reach- 
ing union,  or,  one  may  even  say,  an  amalgamation,  of  the  temporal 
and  spiritual  powers.  As  a  supplement  ^"  to  the  duty  of  the 
Church  to  care  for  the  souls  of  men,  the  Church  felt  constrained, 
if  the  State  did  not  perform  its  duty,  to  undertake  in  some  matters 
a  kind  of  temporal  justice,  e.g.  illgotten  gain  must  be  returned, 
and  compensation  made  for  unlawful  injury.  Moreover,  the 
kings  realized  the  service  rendered  to  the  security  of  their  rule 
by  a  religion  which  preached  as  its  precept  ^^  obedience  to  the 
authorities  and  especially  to  the  king.  They  also  perceived  the 
extent  to  which  the  ready  and  compact  organization  of  the  Clergy, 
supported  by  historical  tradition  and  remarkable  for  its  training, 
could  be  of  service  to  the  State.  The  great  men  of  the  Empire, 
who,  strong  in  their  own  considerable  resources,  could  often  suc- 
cessfully dispute  the  jurisdiction  of  the  king,  and  need  not  fear 
revenge  or  punishment,  were  thus  compellable  to  submit  to  a 
public  punishment,  often  humiliating.^*  And  this  was  generally 
true,  even  though  the  Church  was  governed  by  motives  of  pru- 
dence in  lending  its  services.  The  kings  therefore  accorded  to  the 
criminal  power  of  the  Church  the  most  thoroughgoing  support  of 
the  temporal  courts  and  officers,^^  for  the  enforcement  of  every 

ingerat  se  enormibus.  Tertium  quod  frequens  fuerit  in  illis.  Quartum 
quod  in  eis  deprehendatur.  Quintum  quod  fuerit  ter  monitus.  Sextum 
quod  post  monitionem  fuerit  incorrigibiles  "  !  (Here  at  any  rate  there  is  a 
long  tolerance  of  abuses.)  Cf.  also  Gandinus,  "De  malef.  Rubr.  de 
poenis  ",  n.  34. 

11  In  England  the  so-called  "benefit  of  clergy",  which  in  the  course  of 
time  was  also  extended  to  other  persons  {e.g.  to  those  who  were  able  to 
write),  gradually  led  to  a  lessening  of  many  of  the  punishments,  until  in 
later  times  it  was  abolished  as  incongruous,  and  at  the  same  time  superflu- 
ous because  of  the  more  lenient  character  of  modern  law.  Cf.  Stephen, 
"Hist,  of  the  Crim.  Law",  pp.  4.  .532. 

12  Concerning  the  task  of  supplying  the  defects  in  the  ci\al  jxirisdiction, 
assumed  by  the  Church,  and  its  results,  cf.  for  later  period,  especiallj'  Tib. 
Decianus,  "Practica  erim.",  IV,  c.  10. 

"  Waitz,  III,  p.  271. 

"  Everyone,  even  the  most  prominent,  were  under  the  jurisdiction  of 
the  "Sendgerichte"  of  the  Church.     Dove,  p.  355. 

"  "Cap.  Mant."  (a.d.  781),  c.  6  {Pertz,  p.  41):  "  comite  vel  sculdaz 
adiutorium  prseveat."'  "Cap.  Missorum"  (a.d.  853),  c.  10  {Pertz,  p.  420)  : 
"Ut  missi  nostri  omnibus  reipublicte  ministeriis  denuntient,  ut  comites  vel 
reipublicfB  ministri  .  .  .  quando  episcopus  eis  notura  fecerit  et  quos  per 
excommunieationem  episcopus  addueere  non  potuerit,  ipsi  regia  auctori- 
tate  et  potestate  ad  poenitentiam  vel  rationem  atque  satisfactionem  addu- 
cant."  In  the  compact  entered  into  by  the  sons  of  Louis  the  Pious, 
Lothair,  Louis,  and  Charles  (a.d.  851,  "Conventus  apud  Marsnam",  II, 
c.  5,  Pertz,  "Leges",  I,  p.  408),  the  Bishops  were  granted  international 
legal  pri\aleges  in  the  enforcement  of  penance.  Thus  arose  the  familiar 
maxim  of  the  Middle  Ages  that  the  spiritual  and  temporal  powers  mutually 

86 


Chapter  III]  THE    CHRISTIAN   CHURCh's   LAW  [§  29 

penance. ^^  They  even  made  use  of  the  spiritual  authorities  for 
the  better  and  more  certain  punishment  of  the  persons  hable  to 
punishment  under  the  civil  laws,^"  and  also  for  the  suppression  of 
feuds  and  blood  revenge.  On  the  other  hand,  the  bishops  appear 
as  officials  of  the  king ;  for  the  king  claimed  and  exercised,  in 
respect  to  their  judgments  (at  least  where  the  laity  were  inxolved) 
a  supreme  power  of  review. ^^  Thus  by  virtue  of  tiie  coercive 
cooperation  of  the  civil  officials,  the  Church  was  able  to  inflict 
degrading  punishments  upon  even  the  most  prominent  individuals, 
or,  instead  or  in  addition,  to  compel  the  payment  of  considerable 
sums  for  pious  purposes.  Unfree  persons  it  could  thus  punish, 
even   peremptorily  and   to   the   last  extremity.'^     Consequently 

support  each  other,  that  the  ci\nl  judge  can  have  recourse  to  the  bann  of 
the  Church,  and  "vice  versa"  the  spiritual  tribunal,  if  it  fails  to  accom- 
plish its  purpose  by  excommunication,  can  resort  to  ci\il  outlawry,  and 
even  that  this  punishment  last  mentioned  atttaches  itself  ''ipso  jure"  to 
excommunication  of  long  standing.  Cf.  '"Friederici  II.  imp.  confoede- 
ratio  cum  principibus  ecclesiastieis  ".  a. 0.1220  {Pertz,  "  Leges  ",  II,  j).  236) : 
"Et  quia  gladius  materialis  constitutus  est  in  subsidium  gladii  spiritualis, 
si  excommunicatus  in  ea  ultra  sex  septimanas  perstitisse  .  .  .  nobis  con- 
stiterit,  nostra  proseriptio  subsequatur,  non  revocanda  nisi  prius  excom- 
municatio  revoeetur."  The  "Sachsenspiegel",  III,  G3,  §2,  however, 
denies  direct  effect  to  the  ban  of  the  Church  ;  cf.  "Schwabenspiegel  Vorw." 
In  England  there  was  a  special  warrant  of  arrest,  the  \\Tit  "De  excom- 
municato capiendo";  the  excommunicated  was  placed  in  the  county 
prison  until  he  relieved  himself  of  the  excommunication  ;  cf.  Folkard, 
"The  Law  of  Libel  and  Slander"  (London,  1876),  4th  ed.  p.  77. 

^  Cf.  the  questions  in  Regino,  "De  syn.  causis libr.",  II,  c.  2  (in  the  early 
900  s). 

"  "Cap.  Karol.  M.  Paderb."  (a.d.  785)  "De  partibus  Saxoniae",  c.  14 
{Pertz,  "Leges",  I,  p.  49;  Merkel,  "Lex  Saxoiuim",  p.  17)  :  "Si  vero  pro 
liis  mortalibus  criminibus  latenter  commissis  aliquis  sponle  ad  sacerdotem 
confugerit,  et  confessione  data  agere  poenitcntiam  voluerit,  testimonio 
sacerdotis  de  morte  excusetur"  (tliis  has  to  do  with  high  treason  and 
homicide  connected  with  treason).  "Cap.  Aquisgran."  (a.d.  813),  c.  1 
{Pertz,  p.  188):  "Ut  episcopi  circumeant  parochias  sibi  comniissas  et  ibi 
inquirendi  stadium  habeant  de  incestu,  de  porricidiis,  adulteriis,  cenodoxiis 
et  alia  mala  quae  contraria  sunt  Deo  .  .  .  Et .  .  .  emendandi  curam  habeant." 
Thus  in  the  Aliddle  Ages  the  gravest  crimes  were  often  punished  only  ^\^tll 
the  penalties  of  the  Church,  pilgrimages,  and  erection  of  a  cross.  As  to  the 
criminal  justice  of  the  cities,  in  this  regard,  during  tlie  1.300  s  and  1400  s,  cf. 
Von  Maurer,  "Geschichte  der  Städteverfassung  in  Deutschland",  III, 
p.  633. 

•«"Karoli  II.  Ed.  Pistense"  (a.d.  869),  c.  7  {Pertz,  p.  510):  "Ut  si 
episcopi  suis  laieis  injuste  fecerint,  et  ipsi  laici  se  ad  nos  inde  redamaverint, 
nostriE  regiae  potestati  secundum  nostrum  et  suum  ministerium  ipsi 
arehiepiscopi  et  episcopi  obediant,  ut  secundum  sanctos  canones  et  juxta 
leges  quas  ecciesia  catholica  probat  et  servat,  et  secundum  capitida  avi  et 
patris  nostri  hoc  emendare  eurent."  However,  complaints  of  the  clergy 
against  their  superiors  were  not  entertained  by  the  King;  cf.  Du  Hoys,  I, 
pp.  418  et  seq. 

•'  By  the  later  Canonists,  according  to  e.  10,  Caus.  26,  qu.  5,  imprison- 
ment by  the  Church  in  exceptional  cases  was  deemed  applicable  even 
against  laymen.:    Eichhorn,   II,   p.   80. 

87 


§30]  THE   MIDDLE   AGES  [Pakt  I,  Titlk  II 

the  Church  exercised  a  criiiihial  power  that  was  secular  as  well  as 
spiritual.  It  is  thus  easily  explicable  that  the  State  recoj^nized 
the  jurisdiction  of  the  Church  in  respect  to  the  so-called  "  delicta 
mixta  "  by  omitting  to  punish  these  crimes  if  they  had  been  already 
punished  by  the  Church.^^  Moreover  the  laity,  at  least  the  lower 
and  poorer  classes,  often  had  sufficient  reason  for  gladly  subjecting 
themselves  to  the  milder  criminal  justice  of  the  Church.'-^ 

§  ',]().  Influence  of  the  Church's  Right  of  Asylum.  —  The  right 
of  asylum  ^  belonging  to  the  Church  was  yet  a  third  means  by 
which  its  criminal  jurisdiction  was  indirectly  extended.  The  hard- 
pressed  criminal  who  was  able  to  reach  a  church  ^  was  safe,  at  least 
for  the  time  being.'^     It  rested  with  the  discretion  of  the  spiritual 

20  Prevention  of  crime  appears  also  to  have  been  undertaken  by  both 
civic  and  spiritual  powers  ;  cf.  e.  2  in  Sexto  "De  exc",  2,  12.  Katz,  pp.  40 
et  seq.  denies  the  so-called  "  delicta  mixti  fori."  This  intermediate  field  of 
jurisdiction  was  the  necessary  result  of  the  new  life  acquired  by  the  State 
and  Church  under  the  Carolingians.  e.  8  X,  "De  foro  competente",  2,  2 
is  also  of  interest.  However,  the  spiritual  judge  was  able  to  inflict  only  the 
punishments  of  the  Church.  But  it  is  not  to  be  inferred  from  this  that  the 
punishments  of  the  Church  might  not  be  supplanted  by  the  punishments 
of  the  State. 

2'  In  the  statutes  of  the  cities  it  was  sought  later  to  limit  the  excessive 
subordination  of  the  citizen  to  the  spiritual  jurisdiction.  Thus,  in  the  law 
of  the  city  of  Augsburg  (a.d.  1276,  ed.  Meyer),  Art.  22,  it  is  stated  :  "Ez 
sol  ein  burger  antworten  in  dem  capitel  umbe  vier  dinch  umbe  niht 
anders  .  .  .  ."  Any  one  prosecuting  a  cause  other  than  one  of  these  four 
before  the  spiritual  court  was  obliged  to  pay  to  the  people  a  money  fine. 
Cf.  also  "Sächsisches  Weichbild",  Art.  25. 

1  Concerning  the  history  of  the  right  of  asylum,  cf.  Richter,  "Kirchen- 
recht" (Dove),  §  212.  It  was  completely  abolished  in  Germany  during  the 
1700s,  and  in  Protestant  regions  at  an  earlier  date.  Decianus,  "Practica 
crim.",  VI,  31,  remarks:  "Hoc  vero  cum  lacrymis  memorandum  non 
silebo,  quod  apud  Germanos  Lutherana  haeresi  infectos  nuUus  habetur 
locus  sacer  ...  et  ideo  nullus  in  his  (templis)  tutus  est,  quum  ecclesias,  id 
est  templa  habeant  loco  platearum";  Löning,  I,  pp.  317  et  seq.,  II,  pp. 
536  et  seq.  The  right  of  asylum  had  its  origin  under  the  Clu-istian  emper- 
ors of  Rome,  but  it  was  only  a  sort  of  foothold  for  intercession.  In  the 
Frankish  empire,  where  criminal  prosecution  was  generally  a  private  pro- 
ceeding, the  right  of  asylum  attained  greater  importance.  As  the  idea 
lying  at  the  basis  of  the  right  of  asylum  (which  was  also  important  in 
heathen  times  and  among  the  Jews)  it  may  be  stated  that,  so  far  as  the 
right  of  asylum  has  encroached  upon  the  public  procedure,  the  state 
criminal  power,  when  it  lacked  confidence  in  itself  (occasionally  in  ancient 
times  the  death  penalty  was  inflicted  in  such  a  manner  that  it  might  be 
possible  for  the  condemned  to  be  saved  by  a  special  intervention  of  fate 
or  the  gods),  obtained  from  the  deity  a  ratification  of  its  punishments,  or  if 
the  condemned  came  in  touch  with  the  deity  the  punishment  was  forth- 
with mitigated  or  abandoned  (as  in  Rome  when  the  condemned  on  his 
way  to  the  place  of  execution  met  a  Vestal  Virgin). 

*  "Schwabenspiegel",  329  {Lassberg),  regards  as  already  within  the 
peace  of  the  church  those  who  have  grasped  the  ring  on  the  door  of  the 
church,  and  also  attributed  the  right  of  asylum  to  the  sacred  courtyards 
of  the  church. 

3  Cf.  c.  1,  2,  3,  Can.  23,  qu.  5,  and  "Lex  Bajuv."  1,  7  (ed.  Merkel  T.  1)  : 
"Si  quis  culpabihs  .  .  .  confugium  ad  ecclesiam  fecerit,  nullus  eum  \-im 

88 


Chapter  III]  THE    CHRISTIAN   CHURCH's   LAW  [§  30 

power  whether  or  not  to  give  him  up ;  and  he  was  given  up  only 
after  a  prehminary  mediation  between  the  pursuer  and  the  crimi- 
nal. The  latter,  if  the  spiritual  authorities  deemed  him  guilty, 
was  obliged  to  bind  himself,  in  consideration  of  the  former's  fore- 
going all  claim  for  slaying  or  mutilation,'*  to  furnish  satisfaction 
and  damages.^  "  Ecclesia  abhorret  a  sanguine."  Thus  the  Church, 
in  a  certain  sense,  performed  the  function  of  an  arl^itrator  between 
private  revenge  or  the  public  criminal  authority,  on  one  hand,  and 
the  criminal  on  the  other.  A  substantial  restriction  was  hereby 
placed  upon  private  vengeance,  and  the  State's  criminal  power  was 
rendered  more  lenient.  The  latter,  to  be  sure,  was  thus  often 
weakened  and  hindered,  to  the  sacrifice  of  the  public  safety.^ 

Acquisition  by  Church  of  Temporal  Jurisdiction.  —  Yet  another 
indirect  influence  of  the  Church  upon  criminal  law  deserves  con- 
sideration. In  the  ^Middle  Ages,  the  Church  came  into  possession 
of  a  great  number  of  the  civic  tribunals.  Thus  it  was  enabled 
to  administer  justice  (i.e.  civic  justice)  through  the  civic  officials 
and  in  accordance  with  the  civil  methods.  It  was  only  natural 
that  civic  officials  in  the  employment  of  the  Church  should  yield 
to  the  principles  of  the  Church  and  its  criminal  law."     Moreover, 

abstrahere  ausus  sit,  postquam  januam  eeclesise  intraverit,  donee  inter- 
pellat  presbyterium  ecclesiae  vel  episcopum.  Si  presbyter  repripsentare 
ausus  fuerit  et  si  talis  culpa  est,  ut  dignus  sit  discipliiia  cum  consilio 
sacerdotis  hoc  faeiat,  quare  ad  eeclesiam  confugiuiu  fecit.  Nulla  sit 
culpa  tarn  gravis  ut  ^•ita  non  coneedatur  propter  tiinorem  Dei  et  reveren- 
tiam  sanctorum,  quia  Dominus  dixit:  Qui  dimiserit,  dimittetur  ei ;  qui 
non  dimiserit  nee  ei  demittetur."  Cf.  eoncerning  the  later  treatment  of 
the  right  of  asylum,  the  (exceedingly  canonistic)  description  of  Tiberius 
Decinnus,  "Practica  er.",  VI,  c.  25  el  seq. 

*  The  right  of  asylum  of  the  Church  contributed  much  towards  the 
substitution  of  composition  for  private  vengeance.  The  Icings,  looking 
at  the  matter  from  their  own  point  of  view,  had  sufficient  reason  to  sanc- 
tion this  right  of  asylum  and  to  extend  to  it  their  protection:  Pardcssus, 
"Loi  Salique",  p.  656. 

^  The  ban  of  the  Church  was  the  penalty  attached  to  a  violation  of  the 
right  of  asj'lum.  However,  in  those  times  of  violence  there  were  frequent 
violations  of  the  right  of  asylum,  as  also  of  the  oath  whereby  the  pursuer 
bound  himself  to  be  satisfied  with  the  penalties  levied  by  the  Cluirch. 

•^  Abuses  of  the  right  of  asylum  in  the  case  of  grave  crimes  must  have 
soon  arisen.  Cf.  Cap.  a.».  779  (Francicum),  c.  8  {Pcriz,  "Leges",  1, 
p.  3(5).  Necessities  of  life  were  not  to  he  furnished  the  criminal  ("homici- 
das  aut  ceteros  qui  legibus  mori  debent"  runs  the  passage),  and  he  could 
also  be  compelled  by  hunger  to  leave  the  place  of  refuge.  Cf.  also  "  Lex 
Sax.",  XXVI II  (ed.  Merkel)  :  "Capitis  damnatus  nusquam  habeat  paeem. 
Si  in  eeclesiam  confugerit,  reddatur."  Con(;erning  such  exceptions  (mur- 
der and  dishonorable  offenses)  in  other  free  States  at  a  later  period,  see  von 
Maurer,  "Geschichte  der  Fronhöfe  in  Deutschland",  IV,  p.  2.50. 

'  For  example,  fundamental  rules  and  customs  of  which  the  Church 
distinctly  disapproved  could  hardly  maintain  themselv(>s  in  such  courts. 
For  a  ease  of  this  kind,  cf.  c.  2  X.  "  Di'  delictis  puerorum",  ä,  23;  au 
abbot  acting  as  judge  of  a  court  iutlicted  a  money  tine  upon  a  boy  not 

89 


§  31]  THE  MIDDLE  AGES  [Part  I,  Title  II 

the  Church  must  have  been  at  tliis  period  extremely  popular, 
as  several  circumstances  allow  us  to  infer.  In  a  time  when  the 
criminal  law  of  the  State  was  weak  and  uncertain,  the  Church 
had  at  its  disposal  its  own  system  of  law,  both  comprehensive  and 
powerful  because  of  the  learning  bestowed  upon  its  preparation. 
The  Church  was  in  exclusive  possession  of  a  higher  state  of  culture. 
Furthermore  it  passed  judgment  (at  least  as  a  general  rule)  with 
no  discrimination  of  person,  and  from  the  beginning  regarded 
as  its  own  the  cause  of  the  helpless  and  poor.  Finally,  in  short, 
its  justice  was  contrasted  with  that  of  the  civic  authorities,  often 
exercised  in  the  interest  of  petty  fiscal  exactions  anrl  marked  by 
frequent  oppression  of  the  poor  and  humble. 

§  31.  Variation  in  Extent  of  the  Church's  Jurisdiction  at  Dif- 
ferent Periods.  —  These  circumstances  readily  explain  the  varia- 
tion in  the  jurisdiction  of  the  Church  at  different  periods.  To 
punish  crime  was  a  concern  of  the  Church ;  since  all  true  crimes 
are  also  violations  of  morality  and  imperil  the  soul  of  the  criminal, 
it  was  not  difficult  to  discover  that  the  Church  also  was  concerned 
in  punishing  many  crimes  which  were  already  punished  by  the 
State,  and  to  lay  a  basis  for  using  the  criminal  power  of  the  Church. 
Thus  there  were  included,  under  "  delicta  mixta  "  or  "  mixti 
fori  ",  offenses  against  morality  in  the  narrower  sense,  especially 
adultery,  sacrilege,  sorcery,  and  usury,  in  so  far  as  Christians  were 
guilty  of  the  same.  Blasphemy,  forgery  of  papal  documents,  per- 
jury, and  breach  of  contract  were  also  included.^  This  also  readily 
explains  the  frequent  controversies  with  the  civic  authorities,^  the 
disputes  among  the  learned  jurists,  and  their  subtle  distinctions.^ 

considered  old  enough  to  be  responsible,  "secundum  eonsuetudinem  illius 
terrae";  the  Pope  forbade  the  enforcement  "pro  temporal!  poena." 
Aug.  Aretinus,  "De  malef.  Rubr.  Comparuerunt  dicti  inquisiti",  n.  14, 
notes  the  different  treatment  of  the  testimony  of  women  in  "terris  eeclesiae 
subjeetis"  and  in  "terris  imperii."  At  any  rate,  in  "terris  imperii"  the 
"jus  canonicum"  did  not  "de  jure"  have  precedence  of  the  "jus  civile." 
Cjf.  "Bajardi  Addit.  in  Jul.  Clarum"  §  "Raptus",  n.  .38. 

1  "  Ratione  pacti  et  voti  fracti,  item  ratione  juramenti  vel  fidei  dationis" 
say  the  statutes  of  the  Würzburg  Synod  1407,  1446  a.D.,  has  the  Church  her 
jurisdiction.  Cf.  the  interesting  references  in  Sickel,  "Die  Bestrafung  des 
Vertragsbruches  u.  analoger  Rechtsverletzen  in  Deutschland"  (Halle, 
187G),  pp.  46  et  seq.,  especially  49-51. 

2  In  some  territories  (those  of  princes  who  were  clericals)  the  Church 
also  had  before  its  tribimals  complaints  and  accusations  of  the  Clergy 
against  laymen:  "Pri\aleg.  Carl  IV  für  Würzburg",  "Monum.  Boica", 
XLI,  pp.  307,  308.  This  reads  :  "  Super  publicis  ac  privatis  injuriis  "  the 
Clergy  and  the  judges  of  the  tribunals  of  the  Church  may  bring  charges 
against  laymen  "coram  judice  eeclesiastico",  "quemadmodum  etiam  in 
plerisque  partibus  Germanife  ac  praecipue  in  provincia  Moguntina." 

^  Cf.  Tib.  Decianus,  "Tract,  crim. ",  IV,  27,  6. 

90 


Chapter  III]  THE    CHRISTIAN    CHURCH's   LAW  [§  31 

"  Poenae  Medicinales  "  and  "  Poenae  Vindicativse."  —  The  funda- 
mental ideal  of  the  punishment  of  the  Church  was  the  restora- 
tion of  the  guilty  to  the  Church  and  to  obedience  to  God.  Hence 
the  punishments  of  the  Church  were  chiefly  "  poense  medi- 
cinales ",  —  punishments  calculated  to  cure  the  guilty  of  his  faults. 
For  this  purpose,  use  was  especially  made  of  excommunication  in 
both  of  its  grades*  ("  excommunicatio  major"  and  "minor"), 
the  interdict,'^  and,  in  the  case  of  priests,  suspension.  But  the 
Church  was  not  barred  from  using  other  punishments,  and  its 
doctrine  mentions  also  "  poenge  vindicativse "  inflicted  by  the 
Church. 

This  distinction,  however,  had  little  real  influence  upon  the 
actual  operation  of  the  criminal  law  of  the  Church.  Those  penal- 
ties which  were  designated  as  "  medicinales  "  were  also  used  by 
the  Church  as  "  poense  vindicativse."  ^  Moreover,  the  eft'ect 
of  many  of  the  "  poense  medicinales  "  was  exactly  the  same  as 
that  of  punishment  inflicted  by  the  civic  authorities.  This 
appears  from  the  fact  that,  in  the  earlier  periods,  public  penance 
of  a  humiliating  nature,  and  later,  severe  fines  and  imprisonment, 
were  inflicted.  The  penalty  of  imprisonment  for  life,  though 
theoretically  (as  maintained  by  the  Church)  justified  by  the 
enormity  of  the  offense,  was  a  matter  of  fact  substantially  equiva- 
lent to  the  extermination  of  the  offender. 

Defects  of  Criminal  Law  of  the  Church.  —  Thus,  one  defect 
of  the  system  lay  in  the  uncertainty  of  its  scope,  due  to  the  fact 
that  the  Church  did  not  confine  itself  to  the  disciplinary  offenses 
of  the  clergy  nor  to  voluntary  penances  or  ultimate  expulsion. 
But  this  was  not  the  only  defect  in  the  character  of  the  Church's 
criminal  law.  Inevitably  there  was  also  a  fluctuation  between 
the  punishment  of  external  misdeeds  and  that  of  mere  immorality 
or  the  mere  possession  of  an  opinion  not  in  accord  with  the  views 

*  Cap.  20,  X.  "De  V.",  p.  5,  40  (Innocent  Til). 

^  The  interdict  was  nothing  other  than  a  modified  application  of  excom- 
munication to  all  places  and  rej^ions. 

«  Ecli,  "De  natura  poenarum  secundum  jus  canonicum"  (IStiO),  p.  30. 
Theoretically  these  two  varieties  of  punishment  are  very  different.  The 
"poena  medicinte"  has  reg:ard  only  for  the  intention  which  is  deenu-d 
equivalent  to  the  manifested  act  ("in  maleficiis  voluntas  pro  opere  reputa- 
tur"  is  ^\Titten  before  C.  2F>,  D.  I.  "De  po^nitentia",  and  in  C.  29,  ul.,  it 
says:  "Si  propterea  non  facis  furtum  quia  times,  ne  \idearis,  intus  fecisti 
.  .  .  furti  teneris,  et  (si)  nihil  tulisti "),  and  repentenace  may  at  least  remove 
a  portion  of  the  culpability.  Tlie  "  pcpme  vindicativie"  luive  as  their 
purpose  the  separation  of  the  guilty,  as  a  corrupt  part  of  the  body,  from 
the  Church,  c.  18,  C.  XXIV,  qu.  3,  or  else  have  the  purpose  of  deterring 
others,  c.  1,  X,  5,  26. 

91 


§  32]  THE   MIDDLE   AGES  [Paut  I,  Titlk  II 

of  the  Church ;  and  also  a  fluctuation  between  a  concern  for  real 
penitence  and  a  satisfaction  with  its  external  manifestations. 
The  danger  to  its  criminal  law  from  this  source  is  apparent  in  its 
older  penal  provisions  which,  in  analogy  to  the  early  folk-laws, 
contained  an  exact  calculation  of  penalties  for  each  individual  sin 
or  transgression.  And  it  is  even  more  evident  in  the  later  system 
of  indulgences,  which  permitted  forgiveness  of  sins  to  be  purchased 
outright  by  the  payment  of  money. 

Thus  the  history  of  the  criminal  law  of  the  Church  offers  an 
illustration  of  the  truth  that  only  by  adherence  to  an  objective 
or  outward  standard  can  a  steady  development  of  criminal  law  be 
obtained.  By  taking  the  external  standard,  it  is  possible  to  reach 
gradually  a  juster  valuation  of  inward  or  personal  guilt.  If  we 
are  to  hope  to  detect  inward  guilt  by  human  agencies,  we  must 
resort  exclusively  to  external  manifestations.  Apart  from  the 
fact  that,  under  a  system  of  criminal  law  based  on  that  theory, 
the  inward  guilt  of  malice  and  passion,  of  ambition  and  greed, 
are  sure  to  receive  their  just  deserts,  there  is,  at  any  rate,  no  other 
means  available  to  attain  the  end  desired.  Exclusive  regard  for 
the  moral  element  leads  endlessly  nowhere. 

§  32.  Heresy.  —  The  crime  of  heresy  was  also  based  upon  a 
theoretical  and  abstract  standard  of  guilt. 

How  far  the  error  involved  in  heresy  is  to  be  attributed  to  per- 
sonal guilt  is  a  problem  which  never  has  been  and  never  will  be 
solved.  The  Church,  however,  believed  that  it  could  solve  this 
problem.  It  proclaimed  as  guilty  those  who  held  views  contrary 
to  its  own  and  lapsed  from  the  faith,  if  they  could  not  be  con- 
vinced of  their  error.^  This  attitude  the  Church  adopted  at  a  very 
early  period.  Even  in  the  days  of  Rome,^  it  demanded  and  ob- 
tained from  the  State  the  most  severe  and  terrible  punishments 
of  the  State  for  those  guilty  of  this  offense.^     Once  it  had  thus 

1  Tib.  Decianus,  "Practica  crim.",  V,  8,  n.  2 :  "Vere  dicitur  hseretieus 
qui  errat  circa  fidem  Christianum  per  intellectum  et  pertinaciter  haerefc 
errori  per  voluntatem." 

^  L.  1,  C.  J.,  1,  5  "De  hsereticis"  :  "Haeretieos  non  solum  his  pri\dle- 
giis  aUenos  esse  volumus,  sed  adversis  muneribus  constringi  et  subjici" 
(Constantine,  a.d.  326).  L.  4,  §  1,  C.  eod.  (Theodosius,  a.d.  407)  :  "Ac 
primum  quidem  volumus  esse  publicum  crimen  quia  quod  in  religionem 
divinam  committitur,  in  omnium  fertur  injuriam."  The  confiscation  of 
property  ordered  by  the  last  mentioned  "constitutio"  made  the  punish- 
ment of  this  offense  by  the  secular  authorities  one  to  be  feared.  Cf.  the 
later  decrees,  relating  to  heresv,  of  the  German  emperors.  Const.  Frie- 
derici  II,  a.d.  1220,  §  6  (Statuimus),  Pertz,  "Leges,"  II,  p.  244;  Henrici 
reg.  const.,  a.d. 1232,  Pertz,  p.  287. 

'  The  heretic   was  not  formally  sentenced  to   death  by   the  spiritual 

92 


Chapter  111]  THE   CHRISTIAN   CHURCH'ö   LAW  [§32 

induced  the  State  to  take  such  measures,  it  found  later  no  diffi- 
culty, when  its  interests  seemed  to  demand,  in  demonstrating?  its 
sympathy  with  harsh  penalties  in  other  cases.  To  this  attitude 
the  Church  steadfastly  adhered.  And  this  was  in  spite  of  the 
fact  that  (as  already  remarked)  it  had  in  the  beginning  announced 
its  abhorrence  of  punishments  of  life  or  blood,  and  that  it  also 
later  exemplified  this  principle  in  the  exercise  of  its  right  of 
asylum. 

Ideal  of  Divine  Justice  and  the  Mosaic  Law.  —  Naturally,  then, 
the  belief  arose  that,  since  all  these  punishments  were  not  opposed 
by  the  Church  and  were  indeed  favored,  their  infliction  was  in 
furtherance  of  divine  justice.  i.\nd  here,  significantly,  the  Mosaic 
criminal  law,  which  frequently  is  based  on  the  "  talio  ",  or  rule 
of  like  for  like,  began  to  be  regarded  under  the  influence  of  the 
Church  as  a  direct  divine  command.  It  was  looked  upon,  to  be 
sure,  as  directed  to  the  secular  authorities  and  not  to  the  Church 
itself ;  consequently,  justice  administered  by  the  secular  authorities 
was  relieved  of  every  doubt  as  to  its  own  infallibility.  Thus  is 
explained  that  fanatical  tenacity  with  which,  even  after  the 
Reformation,  criminal  justice  allov/ed  itself  to  revel  in  blood  and 

authorities.  But  the  death  of  one  declared  guilty  of  the  "phaffen"  fol- 
lowed as  a  matter  of  course  (c/.  c.  18,  in  VI.  "De  liipret.",  5.  2).  Theoret- 
ically the  secular  jurists  maintained  the  right  of  the  civic  judge  to  make 
an  investigation  of  the  verdict  of  the  spiritual  tribunal  (r/.  e.g.  Bariolns  in 
"Leg.  Div.  Hadrianus",  [7]  n.  3,  D.  "De  custodia  reorum",  48,  3) ;  but  as 
a  matter  of  practice  this  was  not  done,  or  else  it  was  expressly  rejected  in 
the  statutes  (cf.  "Augsburger  Stadtr."  127(5,  ed.  Meyer  p.  106,  Art.  32; 
"Sch\va])enspiegel",  ed.  Lassberg,  313,  "Bambergensis",  130:  "Item  wer 
durch  den  ordentlichen  geystlichen  richter  für  einen  Ketzer  erkant  und 
dafür  dem  weltlichen  Richter  geantwort  wurde,  der  soll  mit  dein  ft-wer  \üm 
leben  zmn  todt  gestrafft  weden").  Cf.  also  Osenbrüggen,  "Das  Alaman- 
nische  Strafrecht",  p.  375.  Also  Clnrus,  §  fin.,  qu.  9(5,  n.  7,  denies  that 
the  civic  judge  has  the  right  of  examination,  althougli  the  judgi's  had 
usurped  this  right  in  certain  cases,  so  that  recently  Philip  II  at  the  Senate 
of  Milan  had  made  unconditional  execution  of  the  sentence  a  duty.  —  There 
was  a  direct  coercion  to  remain  in  the  Church.  If  a  Jew  once  converted  to 
Christianity  again  became  a  Jew,  he  was  put  to  death  by  burning.  "  Sehwa- 
benspiegel"  (ed.  Lassberg),  262.  —  The  extent  to  which  the  Churcli  lost 
all  sense  of  justice  towards  real  or  alleged  heresy  is  shown  e.g.  in  thecollcc- 
tion  of  extravagant  principles  of  persecidion  (for  one  should  not  call  them 
principles  of  law)  found  in  Tib.  Decianus,  V,  c.  20  ("  Ihvresis  s]HH*ialia"). 
The  heretic  e.g.  lost  "ijxso  jure"  the  ownership  of  all  his  proptTty,  his 
descendants  to  the  second  degree  had  no  legal  rights,  he  became  "infamis." 
His  sons  lost  their  fiefs.  Alere  "cogitatio"  was  subject  to  punishment. 
There  were  also  rules  of  procedure  that  were  monstrosities.  —  Even  apart 
from  cases  of  heresy,  the  Popes  at  times  favored  provisions  that  were 
clearly  unjust.  T/.  e.g.  c  4  in  VI,  "  D(>  pciMiis",  5.  <),  directed  against 
those  who  injure  a  cardinal,  and  (in  analogy  to  the  statutes  of  the  Roman 
despots  also)  visiting  the  penalties  even  upon  sons  and  grand.sons.  The 
signihcunt  analogy  of  heresy  to  "löse  raajeste"  appears  ia  L.  4,  §  4,  c.  1, 
5  (by  Theodosius). 

93 


§  32]  THE    MIDDLE   AGES  [PaRT  I,  TiTLE  II 

grewsome  penalties,  with  an  almost  univ'crsal  approval.  Amidst 
an  increasing  progress  and  culture,  the  law  remained,  till  well  into 
the  ITOOs,  the  bulwark,  as  it  were,  of  cruelty  and  barbarity.  So, 
too,  the  influence  of  the  Church  is  responsible  for  that  dominant 
aim  (often  extravagant)  in  later  practice  and  legislation  to  make 
men  moral,  resulting  in  measures  of  moral  police  grossly  over- 
stepping the  appropriate  limitations  of  State  interference.  The 
idea  of  an  external  power,  like  the  Church,  intruding  upon  the 
moral  life  of  the  individual,  observing,  protecting,  and  punishing, 
had  become  familiar.  What  had  earlier  been  done  by  the  Church 
became  later  the  province  of  the  police  powder  of  the  city  or  State.* 
Thus  the  Church  laid  the  foundations  for  the  later  omnipotence 
of  the  State. 

Ultimate  Effect  of  the  Criminal  Law  of  the  Church.  —  A  long^ 
period  was  to  elapse,  and  arduous  effort  was  to  be  expended, 
before  the  criminal  law  freed  itself  from  these  untoward  effect» 
of  the  Church's  influence.  The  weakness  of  the  medieval  State 
made  their  long  continuance  inevitable.  This  weakness  itself 
had  its  origin  (paradoxically  enough)  in  the  rugged  natural  strength 
of  the  Germanic  race  and  its  almost  unlimited  sense  of  personal 
individual  liberty.  This  trait  vested  the  individual  with  a  liberty 
to  barter  away  his  liberty,  and  gave  to  the  king  the  freedom  to 
dismember  the  State,  and  parcel  it  out  piece  by  piece.  In  other 
words,  this  w^eakness  was  due  to  the  subordination  of  general 
public  law  and  order  to  subjective  or  personal  right.^  Neverthe- 
less, one  permanent  service  to  the  Germanic  peoples  was  rendered  ; 
for  the  Church  represented  and  emphatically  upheld  the  idea  of 
an  absolute  objective  law  and  order  superior  to  all  individual  rights. 
In  one  aspect,  this  signified  the  equality  of  all  before  the  law.  In 
another  aspect,  it  signified  a  better  valuation  of  the  subjective  side 
of  crime,  of  individual  guilt,  —  the  idea  of  reformation,  implying 
that  the  punishment  should  benefit  the  oft'ender.^  To  the  Church, 
in  the  main,  we  owe  our  thanks  for  these  contributions,  —  ele- 
ments which,  although  only  secondary,  are  nevertheless  very 
important. 

*  Thus  many  acts  punished  by  the  Church  later  became  punishable  by 
the  police  authorities,  e.g.  unchastity. 

^  In  the  German  kingdom,  which  at  times  (e.g.  under  Charles  the  Great) 
was  so  powerful,  the  personal  (subjective)  element  was  very  prominent 
(c/.  Waitz,  "Verfassungsgeschichte",  IV,  p.  427. 

«c.  63,  84,  D.  1  "De  poenitentia." 


94 


Chapter  IV 


MEDIEVAL  GERMANIC  LAW 


§  33.  Result  of  the  Degradation  of 
the  Mass  of  the  People. 

§  34.  F'euds  and  Self-Redress. 
The  "Landfrieden." 

§  35.  Changes  in  the  Theory  of 
Specific  Crimes. 

§  30.  Equality  Before  the  Law. 
Moralizing  Tendencies. 

§  37.  Effect  of  Changes  in  the 
Law  of  Proof.  Arbitrary 
Character  of  the  Law. 

§  38.  Confusion  Resulting  from 
the  Term  "Frieden."  Re- 
version to  Primitive  Con- 
ceptions.      Severity  of  the 


Law.  Application  of  the 
Mosaic  Law.  Cruelty  of 
the  Punishments.  Fail- 
ure of  the  Law. 
§  39.  Incidental  Circumstances 
Having  a  Demorahzing 
Influence.  Private  Set- 
tlement in  Cases  of  Crime. 
The  "Grace"  of  the 
RuliTS.  Other  Peculiar 
Customs.  Influence  of  Ac- 
cidental Circumstances. 
Uncertainty  of  the  Court 
Procedure. 


§  33.  Result  of  the  Degradation  of  the  Mass  of  the  People.  — 
Even  in  that  stormy  and   restless  periocP  usliercd   in   with  the 

1  In  regard  to  the  matter  contained  in  this  chapter  the  following  writers 
may  be  consulted:  Henke,  "Grundriss  einer  Geschichte  des  deutschen 
peinlichen  Rechts"  (2  vols.  1809),  Vol.  I,  pp.  109  et  .^eq.:  Jarcke,  "Hand- 
buch des  deutschen  Strafrechts",  Vol.  1(1827),  pp.  21  et  seq.;  Grimin. 
"Deutsehe  Rechtsalterthümer "  (2d  ed.  1804);  Douandt,  "Geschichte 
des  Bremer  Stadtrechts"  (2  parts,  1830);  Warnkönig,  "Flandrische 
Staats-  und  Rechtsgeschichte";  Ronshirt,  "Geschichte  und  System  des 
deutschen  Strafrechts"  (3  vols.  1838-1839);  Warnköiiitj  and  L.  Stein, 
"  Französische  Staats-  und  Rechtsgeschiclite  ",  Vol.  3,  pp.  1(18  d  seq.,  272 
et  seq.,  489  et  seq.;  Von  Wächter,  "Abhandlungen  a.  d.  Slrafrecht"; 
Walter,  "Deutsehe  Rechtsgeschiclite"  (2d  ed.  1857),  II,  §§  701  et  seq.; 
IFai^z,  "  Deutsehe  Verfassungsgescliicli1(> "  (3d  ed.  1880),  Vols.  lU-VI; 
Hälschner,  "Geschichte  des  Brandi'nl)urgis(^li-Preussisciien  Strafrechts" 
(1855);  Ä'ö.s^^iH,  "  Geschichte  des  deutschen  Strafrechts  im  Umriss".  pp. 
114-207;  Kiuckhohn,  "  Gescliichte  des  Gottesfriedens"  (1857);  John, 
"  Das  Strafrecht  inNorddcutschhind  zur  Zeit  der  Rechtsbüclier  ",  I  (1858) ; 
Dti  Bnijs,  "Histoire  du  droit  criniinel  des  jx'uph's  modernes"  (4  vols., 
Paris,  1854  et  seq.)  ;  Oseiihrü</(/eii,  "  Das  Ahunannisc.Iic  Strafri'cht"  ;  Osin- 
ferMj/f/cH,  "  Das  Langobarfl.  Sirafreclit  "  ;  (1(11).  "  Lchrbudi  des  deutschen 
Strafrechts",  Vol.  1  (18()1),  i)p.  198-240;  Stohh,',  "Geschichte  der  deut- 
schen Rechtsquell(>n  "<  (Part  II,  18()0,  18()4);  Osenltrüiigen,  "Studien  zur 
deutsehen  und  schweizerischen  Rechtsgescliichti'"  (181)8);  (L  L.  Von 
Maurer,  "  Geschichte  der  Fronhöf(>  in  Deutschland  "  (4  vols.,  18(52.  18()3)  ; 
Von  Maurer,  "  Geschichte  der  Städteverfassung  in  Deutschland  "  (4  vols., 

95 


§33]  THE  MIDDLE   AGES  [Part  I,  Title  II 

reign  of  the  last  of  the  Carohiigians  and  often  clescriberl  as  the 
period  of  "  club  law  ",  those  foundations  of  a  public  criminal  law 
which  were  previously  laid  in  Germany  and  defended  by  the  power 
and  ability  of  the  earlier  Carolingians  were  not  completely  de- 
stroyed. However,  they  were  buried,  as  it  were,  beneath  the  sur- 
face. 

It  must  be  here  remembered  that  a  large  part  of  the  people 
had  been  reduced  to  the  position  of  bondsmen  and  serfs.  This 
did  not,  indeed,  take  place  in  the  manner  and  sense  which  one 
ordinarily  ascribes  to  a  change  of  status.^  At  any  rate  it 
must  not  be  assumed  that  in  the  subjection  of  serfs  and  bondsmen 
under  a  feudal  lord,  criminal  law  became  substantially  changed 
from  what  it  had  been  under  the  folk-laws  and  the  royal  statutes. 
These  latter  had  also  to  do  w4th  the  crimes  of  those  who  were 
not  free.  Nothing  is  more  misleading  than  the  conception  that 
either  in  Germany  or  France,  and  especially  in  the  former,  the 
criminal  law  (except  in  those  primitive  times  when  some  of  those 
who  were  not  free  were  legally  treated  as  chattels)  was  one  in 
which  the  rank  of  the  accused  made  a  fundamental  difference.^ 
The  same  forms  of  procedure  obtain  and  substantially  the  same 
legal  principles,  and  it  is  only  a  non-legal  circumstance  that  a  man 
who  is  not  free  and  therefore  possesses  nothing,  or  at  any  rate  is 
unable  to  pay  the  fine,  is  peremptorily  subjected  to  a  punishment 
of  life  or  limb,  which  a  free  man  possessed  of  property  would 
avoid.  Even  where  later  in  the  records  of  the  village  communities 
we  find  penal  rules  of  an  autonomous  nature,  the  distinction  be- 
tween the  free  and  the  unfree  is  not  of  especial  importance.^     It 

1869-1871);  Vo7i  Holtzendorff,  "Handbuch  des  deutschen  Strafrechts", 
I,  pp.  57-65;  Frensdorff,  Introduction  to  O.  Francke,  "  Verfestungsbuch 
der  Stadt  Stralsund"  (1875);  R.  Lönitig,  "Der  Vertragsbruch  im  deut- 
schen Recht"  (1876);  Allfeld,  "Die  Entwicklung  des  Begriffs  von  Mord 
bis  zur  Carolina"  (1877);  Von  Wächter,  "Beilagen  zu  Vorlesungen  über 
das  deutschen  Strafrecht",  pp.  84-100;  Frnuenstädt,  "Blutrache  und 
Todtschlagsühne  im  deutsehen  Mittelalter"  (1881).  [Later  writers  are: 
Steffenhngen,  "  Entwicklung  der  Landrechtsglosse  des  Sachenspiegels " 
(Wien,  1887)  ;  Caspar,  "Darstellung  des  strafrechtlichen  Inhaltes  des 
Schwabenspiegels"  (Berlin,  1892).] 

2  Such  an  over-estimation  of  the  legal  effect  of  change  of  status  can 
be  found  e.g.  in  Köstlin,  pp.  156  et  seq. 

3  Cf.  also  Du  Boys,  II,  p.  230.  For  example,  the  "Constitutio  Fried- 
erici  I."  "Contra  incendiarios "  applied  to  persons  of  every  rank  (Pertz, 
"Mon.  Legg."  p.  183).  In  France,  at  a  later  date,  a  nobleman  was  com- 
pelled to  pay  a  higher  money  fine  than  an  ordinary  citizen  ("roturier") 
for  the  same  act,  —  "Noblesse  oblige." 

*  It  is  not  maintained,  however,  that  the  old  idea  that  a  free  man  could 
lose  his  life  or  limb  only  for  crimes  directed  against  the  community  was 
without  an3f  actual  influence.     In  the  laws  of  those  towns  whose  citizens 

96 


Chapter  IV]  MEDIEVAL   GERMANIC    LAW  [§  S4 

is  only  a  non-legal  circumstance  that,  owing  to  the  very  dependent 
position  of  the  serfs,  the  verdict  of  the  lord  or  his  officials,  the 
"  Schöffen  "  (who,  as  in  the  local  courts  of  the  counts,  were  the 
parties  rendering  judgment),  was  often  biased  by  arbitrary  mo- 
tives. And,  finally,  it  is  a  non-legal  circumstance,  if  one  considers 
it  closely,  that  the  lords  and  princes  were  at  the  most  obliged  only 
to  pay  a  money  fine  for  a  breach  of  the  peace  of  the  land,  while 
for  other  persons  this  entailed  criminal  punishment.  Since  the 
lord  was  possessed  of  the  power  of  acting  as  magistrate  and  was 
the  head  of  a  smaller  State  within  the  greater  State,  i.e.  the  empire, 
it  was  not  difficult  for  him  to  commit  any  oft'ense  he  might  wish 
under  the  guise  of  a  feud  or  even  in  the  exercise  of  magisterial 
power.  It  is  therefore  incorrect  (as  e.g.  Köstlin  has  done)  to 
maintain,  that  in  the  case  of  those  of  high  rank,  criminal  law  legally 
lost  its  true  character  and  became  merely  a  feudal  criminal  law. 
Sentences  to  death  of  persons  of  the  rank  of  count  or  prince  are 
quite  frequent  in  German  history,  although  in  the  post-Carolin- 
gian  period  such  sentences  could  be  executed  with  difficulty. 

There  can  however  be  no  question  but  that  harm  resulted  from 
the  splitting  up  of  the  Empire  into  a  countless  number  of  small 
l)rincipalities.  In  a  certain  sense,  use  was  still  made  of  the  idea 
of  ])ublic  punishment.  The  injury  or  slaying  of  a  person  subject 
to  one's  own  feudal  lord  could  also  be  conceived  as  the  doing  of  an 
injury  to  the  lord,  the  infliction  upon  him  of  a  loss,  and  also  as  an 
injury  to  a  higher  power.  This  in  part  explains  those  confisca- 
tions of  property  to  the  lord's  advantage  which  were  so  frequent 
during  this  period  and  which  are  also  found  among  the  charters 
of  the  cities. 

§  34.  Feuds  and  Self- Redress.  —  The  most  important  hindrance 
to  the  development  as  well  as  to  the  administration  of  criminal 
law  lay  in  the  difficulty  of  distinguishing  a  crime  from  a  per- 
missible form  of  self-defense  or  self-redress.  It  was  an  ancient 
right  that,  in  case  the  courts  refused  or  were  unable  to  give  assist- 
ance, a  free  man  might  procure  redress  by  the  exercise  of  his  own 
strength.^     This  riglit  now  became  especially  the  privilege  t)f  all 

were  vassals  of  some  feudal  lord,  punishments  of  life  and  linil)  were  in 
wider  use  than  where  the  population  was  made  up  of  a  grouj)  of  free  men. 
'  Here  I  agree  with  the  eonclusions  of  von  Wächter  ("Allhandlungen", 
p.  2.51).  II(>  who  raised  a  feud  staked  everything  on  his  sword,  and  if 
necessary  the  other  party  eould  rely  on  his  own  sword.  There  is  notliing 
to  indicate  that  it  was  the  duty  of  tin-  individual  against  whom  a  feud 
was  raised  to  offer  himself  witli  tied  hands  as  a  defenseless  victim  for 
vengeance.     Such  an  obligation  would  be  nugatory, 

97 


§34]  THE  MIDDLE  AGES  [Part  I,  Title  1 1 

those  belonging  to  the  knighthood.  In  those  times  when  the 
power  of  the  courts  was  feeble,  it  was  difficult  to  enforce  an  abso- 
lute denial  of  this  right.  It  was  natural  that  under  the  pretext 
of  self-redress  —  or  self-defense  against  another's  self-redress, 
since  this  also  was  not  amenable  to  punishment  -  —  violent  crimes 
were  committed.  This  was  furthered  by  the  fact  that,  among  the 
Germanic  peoples,  it  was  a  widespread  custom  to  ignore  the  courts 
and  simply  proclaim  a  feud  against  the  indi\idual  against  whom 
one  believed  he  had  a  complaint.  In  the  exercise  of  this  feud,  acts 
of  robbery,  waylaying,  capture,  killing,  and  the  destruction  of 
property  by  fire  seem  to  have  been  permissible. 

The  "  Landfrieden."  —  Those  statutes  ^  known  as  "  Land- 
frieden "  '*  (regional  peace-compacts)  were  enacted  for  the  empire 
by  the  kings  and  emperors,  and  for  the  provinces  by  the  princes 
with  the  approbation  of  the  imperial  officials  and  (where  appro- 
priate) of  the  prominent  persons  of  the  province.  They  had  for 
their  primary  purpose  the  settlement  beyond  all  doubt  of  the 
distinction  between  crimes  and  permissible  feuds.^  Certain 
methods  were  prescribed  for  the  carrying  on  of  feuds   (formal 

2  Cf.  Warnkönig,  III,  1,  pp.  160  el  seq. 

3  Concerning  other  criminal  statutes  of  the  1000  s  and  1100  s,  cf.  Stobbe, 
I,  p.  475.  Henry  II,  in  1019,  enacted  a  statute  dealing  with  "parrici- 
dium"  and  murder.  Henry  III,  in  1054,  enacted  for  Lombardy  a  statute 
concerning  poisoning.  Frederick  II  and  his  successor  enacted  numerous 
statutes  against  heresy.  Henry  VII  enacted  in  Italy  a  statute  concerning 
"lese  majeste." 

■*  The  "Landfrieden"  contained  not  only  provisions  concerning  the 
breach  of  the  peace,  but  also  criminal  rules  of  any  nature  whatsoever,  such 
as  proof  (especially  by  oath),  duelling,  and  police  regulations.  They 
covered  the  entire  kingdom,  or  a  great  part  of  it,  and  applied  to  all  in- 
habitants and  all  classes  in  so  far  as  the  degree  and  kind  was  not  expressly 
fixed  in  accordance  with  the  rank  of  the  offender.  The  "Landfrieden" 
of  the  Empire  served  as  a  model  for  the  "Landfrieden"  of  the  pro\inces, 
and  to  a  certain  extent  for  the  statutes  of  the  cities.  The  princes  might, 
if  they  chose,  cause  the  "Landfrieden"  to  be  supplemented  {cf.  "Land- 
frieden" of  1287,  §  44,  Perlz,  "Mon.  Legg."  II,  p.  452).  As  to  the  sig- 
nificance of  the  "Landfrieden",  cf.  notably  Waitz,  VI,  pp.  419  et  seq.  As 
to  individual  "Landfrieden",  cf.  von  Schulte,  "Lehrbuch  der  D.  Reichs- 
u.  Rechtsgesehichte",  3d  ed.,  §  73.  Also  cf.  Gierke,  "Das  deutsche 
Genossenschaftsrecht",  I  (1868),  pp.  501  et  seq. 

^  The  "Landfrieden"  should  not  be  confused  with  the  "Gottesfrieden" 
("Treuga  Dei",  Truce  of  God)  introduced  by  the  efforts  of  the  clergy 
(first  in  France,  but  also  in  Germany).  This  provided  for  a  cessation  of 
feuds  on  certain  days  of  the  week  and  certain  seasons  of  the  year,  and  also 
that  certain  classes  of  persons  should  have  a  continuous  peace  (i.e.  should 
not  be  subjected  to  acts  of  \aolence  done  in  pursuance  of  feuds).  Cf. 
the  so-caUed  "Constitutio  pacis  Henrici  IV.  Imp."  a.d.  1085.  Pertz. 
"Mon.  Legg."  II,  pp.  55  et  seq.  "Sachsenspiegel",  II,  66.  The  only 
penalties  for  breach  of  the  "Gottesfrieden"  were  those  of  the  Church 
(excommunication) . 

98 


Chapter  IV]  MEDIEVAL   GERMANIC   LAW  [§  34 

preliminary  challenge  ^),  and  it  was  requisite  that  one  should 
first  have  unavailingly  prosecuted  his  complaint  before  a  judge. 
In  addition  to  this,  a  certain  immunity  from  breach  of  the  peace 
was  declared  to  protect  certain  persons  and  places/  e.g.  the  clergy, 
travellers,  merchants,  country  folk  in  the  fields,  the  churches,  the 
highways,  and  the  inliabitants  of  a  village  when  within  its  walls. ^ 
Obviously,  this  was  in  essence  only  a  new  assertion  and  extension 
of  the  old  law.  The  fact  that  these  "  Landfrieden  "  were  decreed 
and  confirmed  by  oath  for  only  certain  fixed  periods  is  to  be  ex- 
plained by  the  idea  that,  for  this  fixed  period,  there  was  established, 
as  it  were,  a  presumption  of  an  established  law  and  order,  so  that 
anyone  who  fictitiously  alleged  a  legally  justifiable  feud  was 
obliged  to  bring  formal  proof  of  the  existence  of  those  conditions 
without  which  the  act  of  violence  was  regarded  as  a  crime. 

As  a  consequence  of  a  crime  now  being  deemed  a  violation  of 
the  "  Landfrieden  ",  there  also  arose  the  conception  that  a  crime 
was  essentially  a  breach  of  the  peace,  and  hence  in  the  first  instance 
was  to  be  regarded  not  as  the  violation  of  an  individual  right,  but 
rather  as  a  rebellion  against  the  general  law  and  order.  Thus 
also  there  arose  that  special  conception  of  a  breach  of  the  "  Land- 
frieden "  as  the  unlawful  exercise  of  a  feud,  which  moreover  was 
in  itself  an  offense  without  the  commission  of  any  other  crime ; 
for,  if  anyone  with  an  armed  force  merely  entered  the  territory 
of  another,  the  elements  essential  to  the  crime  existed.^  Hence 
also  arose  that  conception  of  a  breach  of  a  "  hand  peace  "  ("  Hand- 
frieden  ")  or  "pledged  peace  ",  which  later  disappeared  and  is  nut 

•"Const.  Friederiei  I.  de  ineendiariis",  a.d.  1187  {Pcrtz,  "Legg."  II, 
p.  185):  "Statuimus  etiam  .  .  .  ut  quicumqiie  alii  dainpmun  facere  aut 
ipsum  ledere  intendat,  tribus  at  minus  ante  diebus  per  certum  nuntiara 
suum  diffiduciet  eum  .  .  .  ."  Cf.  "Const.  Henrici  regis",  a.d.  1234  {Pertz, 
''Legg."  II,  p.  314). 

""Sachs.  Landr."  II,  66,  §  1. 

*  Furthermore,  a  distinction  was  made  between  feuds  against  persons 
and  feuds  against  things  ("res").  {Cf.  "Henrici  I.  treuga"  presumably 
of  A.D.  1224,  Pertz,  "  Legg."  pp.  266  et  seq.)  Violence  (for  the  most  part  i 
was  to  be  directed  against  persons  and  not  against  things.  Consequently 
setting  anything  on  fire  was  (as  a  rule)  unpermissible.  Cf.  Kluckhohn, 
p.   144. 

^  Cf.  the  general  and  indefinite  provision  in  the  "Landfrieden"  of 
Rudolph  I  of  1287  (Pertz,  "Legg."  II,  p.  449.  n.  10)  :  "An  sweme  dt>r 
lantfriede  gebrochen  wirt,  beziuget  er  daz  .  .  .  daz  der  cMnen  zu  ahte  tun 
der  den  lantfrieden  gebrochen  hat."  Perpetual  "Landfrieden"  of  UU."). 
§  1  ("Neue  Samml.  der  Reichabscliiede"  II,  p.  4)  :  •'Also  dass  yon  Zeyt 
dieser  Verkündung  niemand  .  .  .  den  andern  bevehden  .  .  .  überziehen  .  .  . 
noch  auch  evnich  Schloss,  Stett,  Märckt,  Bevestigung.  DörlTer,  HölT  oder 
Weyler  absteigen,  oder  on  des  andern  Willen  mit  gewaltiger  That  frevent- 
lich einnemen  .  .  .  solle." 

99 


§  34]  THE    MIDDLE   AGES  [Paut  I,  TiTLE  II 

mentioned  in  the  Baml)er<jensis  or  Carolina.  Tliis  however  did 
not  constitute  a  special  crime,  but  rather  afl'ected  the  character  of 
a  crime  that  had  been  committed,  or  established  beyond  dispute 
a  breach  of  a  "  Landfrieden."  If,  for  example,  a  special  peace 
was  pledged  between  two  contending  parties  — -  and  this  often 
came  about  as  a  result  of  the  mediation  or  compulsory  interven- 
tion of  the  authorities  —  an  offense  committed  in  violation  of 
this  special  duty  of  keeping  the  peace  was  liable  to  special  punish- 
ment as  a  breach  of  a  "  pledged  peace."  —  In  general,  the  "Land- 
frieden "  also  furthered  the  idea  of  public  punishment,  since  their 
observance  was  bound  by  oath  and  therefore  acts  violating  the 
"  Landfrieden  "  appear  as  breaches  of  an  oath  of  fealty.  Thus 
manslaughter  in  violation  of  a  special  "  pledged  peace  "  was  (by 
a  constitution  of  Henry  II)  ^'^  peremptorily  punished  as  perjury 
with  the  loss  of  a  hand.^^ 

Among  those  smaller  groups  of  unfree  persons,  subject  to  a  lord 
and  not  belonging  to  the  knighthood,  or  united  in  a  city,  the  rea- 
sons for  peace  in  the  sense  that  one  could  not  by  violence  procure 
redress  against  his  fellows,  were  self-evident.^-  The  small  group, 
standing  apart  from  those  outside,  could  permit  no  private  war 

10  A.D.  1019,  e.  3  (Pertz,  "Mon.  Legg."  II),  p.  38. 

1' "Heiirici  regis  Constitutio  generalis"  a.d.  1234  {Pertz,  "Legg."  II, 
p.  301)  :  "Si  quis  treugas  datas  violaverit ;  si  cum  ipso  in  cujus  manum 
treuge  fuerant  compromisse  .  .  .  violator  man utn  perdat.'"  C/.  also  "  ^Main- 
zer  Landfrieden"  a.d.  1235,  c.  3  (Pertz,  "Legg."  II,  p.  314).  "Rudolfi  I, 
Const,  pacis  gener."  a.d.  1281,  n.  30  {Pertz,  II,  p.  428),  "Hantfrid"; 
"Swer  zwischen  zwein  veinden  einen  hantfriede  machet."  According  to 
the  "Sachs.  Landr."  the  breach  of  a  pledged  peace  cost  a  man  his  head. 
Under  Charles  the  Great,  such  an  offense  was  punished  as  perjury.  Cf. 
"Cap."  A.D.  805  (in  villa  Theod.  promulgatum)  c.  5  {Pertz,  I,  p.  133): 
"manum  quam  perjuravit  perdat."  Löning,  "Vertragsbruch,"  I,  p.  133, 
correctly  shows  that  the  "handfriede"  was  not  (as  e.g.  Wilda,  "Das 
Strafrecht  der  Germanen,"  pp.  229  et  seq.,  and  Geib,  "Geschichte  das 
römischen  Criminal  process"  (1842),  I,  p.  171  infer)  a  superior  variety  of 
the  ordinary  "Frieden",  but  rather  that  it  signified  nothing  more  than 
that  prior  quarrels  should  be  abated.  On  the  other  hand,  I  am  unable 
to  agree  with  Löning,  pp.  488  et  seq.,  that  any  act  which  even  if  it  was 
not  unlawful  "per  se",  yet  as  soon  as  it  endangered  a  pledged  peace  or 
otherwise  appeared  prejudicial  to  the  same,  was  considered  as  a  breach. 
In  my  opinion  the  passages  quoted  by  Löning  do  not  bear  him  out.  In 
any  case,  according  to  the  early  Germanic  view-point,  the  raising  of  an  ill- 
founded  complaint,  if  one  be  convicted  of  the  same,  constituted  a  wrong 
in  itself,  and  therefore  if  any  one  raised  a  complaint  on  account  of  an  act 
which  had  alreadj^  been  settled  by  a  "pledged  peace",  he  always  com- 
mitted a  Avrong.  Concerning  "Handfrieden"  in  Switzerland,  cf.  especially 
Osenhruggen,  "Studien",  pp.  382  et  seq.,  and  Schlierlinger,  "Die  Frieden- 
biirgsehaft"   (1877),  especially  pp.  11  et  seq. ;  Frauenstädt,  "Blutrache,  39." 

^- Gaupp,  "Deutsche  Stadtrechte  des  INIittelalters",  II,  p.  50.  Cf. 
also  the  "Reehtsbrief  für  Medebach",  a.d.  1165,  §  5.  He  who  killed  an- 
other "infra  fossam"  forfeited  his  life.  He  who  killed  "extra  fossam" 
any  one  who  was  under  the  protection  of  the  lord  merely  made  payment. 

100 


Chapter  IVj  MEDIEVAL  GERMAXIC  LAW  [§  35 

within.  Thus,  for  example,  in  the  "  Berner  Handfeste  "  of  1218,'^ 
it  is  stated  :  "  Qui  infra  terminos  et  pacem  vol)is  ahquem  occiderit 
sine  omni  contradictione  decollari  debet."  Here  the  punishment 
appears  as  based  upon  a  "  Dorffrieden  "  (village-peace)  or  "Stadt- 
frieden  "  (town-peace),  and  since  the  entry  or  residence  in  the 
cities  rested  upon  the  free  will  of  the  citizen,  there  were  in  the 
cities  more  grounds  for  giving  play  to  reasons  of  expediency  ;  and 
the  development  of  the  criminal  law  in  accordance  with  the  ideals 
of  deterrence  became  very  manifest.  However,  efforts  along  these 
same  lines  are  not  totally  lacking  in  the  "  Landfrieden  "  and  the 
royal  ortlinances  dealing  with  individual  crimes. 

§  35.  Changes  in  the  Theory  of  Specific  Crimes.  —  During  this 
period  and  prior  to  the  reception  of  the  Roman  Law  the  concep- 
tion of  specific  crimes  ^  underwent  several  material  changes  and 
developments. 

Treason,  which  originally  was  a  crime  only  against  the  commu- 
nity or  the  army  to  which  the  offender  belonged,  came  to  be  aj)j)lied 
also  to  private  relations.  During  the  period  of  which  we  speak, 
it  is  often  difficult  to  mark  the  distinction  l)etween  j)rivate  and 
public  law,  and  the  policy  of  self-defense,  of  which  the  smaller 
communities  were  obliged  to  be  constantly  thinking,  rendered 
necessary  the  observance  by  their  members  of  the  strictest  fidelity 
towards  their  rulers.  The  violation  of  this  duty  of  fidelity,  even 
by  merely  harboring  hostile  sentiments,  came  naturalis-  to  incur 
death  and  other  severe  penalties.-     A  crime  was  spoken  of  as 

"  The  extent  to  which  the  idea  of  a  justifiable  feud  eontiimed  to  pre- 
vail, even  after  it  had  been  substantially  suppressed  by  the  public  law, 
is  shown  by  the  discussion  of  Boidfacius  de  Vitnlinis,  "De  inaleticiis", 
"  Rubr.  dc  incendiariis  ",  n.  2.  He  discusses  carefully  and  answers  affirma- 
tively the  question  whether  if  someone  has  set  fire  to  the  house  of  A 
"inimicitiarum  causa",  and  from  this  origin  the  house  of  B  is  also  burned, 
A  is  bound  to  render  compensation  to  B?  This  discussion  has  a  meaning 
only  in  the  light  of  the  notion  that  A  might  have  furnished  ground  for  a 
well-founded  "inimicitia."  The  same  notion  appears  also  in  the  city- 
statute  provisions  that  if  anyone  in  the  city  took  part  in  a  feud,  he  must 
suffer  the  consequences.  Here  one  may  note  a  remarkable  provision  in 
the  statutes  of  the  city  of  Casale  in  Italy  ("  Monumeuta  Patria>  jussu 
Regis  Caroli  AUuTti  ed.  Legg.  Municipales  ",  col.  lOol.  1();!2)  :  those  who 
had  an  "inimicitia"  with  a  citizen  of  Casali'  could  impute  it  to  tht'ir  own 
fault  if  they  came  into  the  province  of  Casale  and  were  injured  ;  he  who 
injured  them  was  not  punished  ;  but  the  citizen  of  Casale  must  have  caused 
the  "inimicitia"  to  be  entered  in  a  public  book  designated  for  that  pur- 
pose, otherwise  the  "inimicitia"  was  not  regarded.  Cf.  also  the  statute 
of  Dinkelsbühl  (Genglcr,  "Deutsche  Stadtrechte",  p.  85);  here  the  fact 
of  the  ill-will  was  reported  to  the  l)urgomaster. 

1  This  is  treated  in  fuller  detail  in  the  discussion  of  the  appropriate  theories. 

2"Verrath"  (high  treason),  i.e.  "Perfidia  enormis"  ("Recht  von 
Winterthur",  §  12,  Gaupp,  1,  p.  137). 

101 

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UNIVERSITY  cr  CAlinORm 

RIVERSIDE 


§  ;i5]  THE   MIDDLE  AGES  [Part  I,  Title  II 

"  traditio  "  or  as  having  been  committed  "  cum  tradicione  ", 
if  it  were  done  under  circumstances  which  indicated  a  conscience- 
less treatment  of  the  party  injured,  especially  where  he  was  slain, 
or  which  had  placed  him  helpless  and  defen.->eless  in  the  power  of 
the  criminal.  Thus,  for  example,  the  slaymg  of  one  while  he  wEvS 
asleep,  the  seduction  of  a  married  woman,  and  adultery  were  all 
spoken  of  as  "  treason." 

The  earlier  distinction  between  murder  and  manslaughter  no 
longer  obtained.  Murder  no  longer  is  a  slaying,  followed  by  a 
concealment  of  the  corpse.  It  is  rather  a  slaying  in  violation  of 
some  special  relation  of  confidence,^  in  contravention  of  some 
special  {e.g.  "  pledged  ")  peace,  or  a  slaying  induced  by  a  base 
motive  (especially  desire  for  gain).^  IVIanslaughter  included  every 
other  intentional  wrong  dangerous  "  per  se  "  to  life  and  actually- 
producing  death.  It  especially  included  cases  of  homicide  in 
which  the  man  slain  had,  e.g.  by  his  effrontery,  given  a  certain 
degree  of  exculpation. 

The  infliction  of  bodily  injuries  underwent  in  the  local  laws 
a  more  complete  development.  A  distinction  was  often  based 
upon  the  nature  of  the  instrument  with  which  the  wound  was 
inflicted,  and  upon  the  circumstances,  whether  or  not  the  wound 
was  inflicted  with  premeditation.''  The  drawing  of  a  sword  or 
knife  was  punished  both  as  an  attempt  and  as  a  jeopardizing  of 
the  public  peace. 

In  the  statutes  of  the  cities  special  attention  was  given  to  the 
offense  of  breach  of  the  "  Hausfrieden  "  {i.e.  peace  of  the  house 
or  home).^  Attention  was  also  given  (apart  from  niunerous 
police  regulations  ^  touching  the  markets  and  trade  in  general) 
to  individual  varieties  of  fraud,  falsification  of  goods,  weights, 
and  measures.     Bigamy  ^  now  more  often  appeared  as  an  offense 

^  "Mort"  (murder),  i.e.  "Perfldia"  ("Recht  von  Winterthur"  cited 
above). 

*  Ph.  Allfeld,  "Die  Entwicklung  des  Begriffs  von  Mord  bis  zur  Caro- 
lina", pp.  62  et  seq.      Cf.  Frensdorff,  p.  bei. 

*  In  the  North  German  sources  :    "  Vorsate." 

^  CJ.  also  "Lex  Sax.",  XXVII.  The  slaying  of  a  "faidosus"  (i.e. 
outlaw)  in  his  own  house  was  punishable  with  death.  Cf.  also  "Lex 
Rib.".  LXIV. 

'  Concerning  the  police  ordinances  of  Nürnberg,  cf.  Siebenkees,  "Ma- 
terialien zur  Nürnberger  Geschichte",  pp.  676  et  seq.  Cf.  "Brünner 
Schöffenbueh",  N.  221.  Mention  is  also  made  of  "gemachte  wandel." 
We  find  in  Italy  verj^  comprehensive  police  ordinances,  often  enacted 
with  a  ^■iew  to  hinder  traffic  in  necessities  of  life  that  were  dangerous  to 
health,  fraudulent,  or  spoiled.  Cf.  e.g.  "Statuta  Taurini",  "Monumenta 
Patriae",  "Legg.  Munic",  col.  678  et  seq. 

'^  Cf.  e.g.  concerning  the  earlier  law  in  the  "Hansischen  Recesse", 

102 


Chapter  IV]  MEDIEVAL   GERMANIC    LAW  [§  36 

entailing  secular  penalties,  and  in  the  South  German  sources 
mention  is  also  made  of  offenses  contrary  to  nature.  On  the 
other  hand,  no  change  in  the  old  conception  of  adultery  (regarded 
merely  as  a  wrong  to  the  husband)  was  apparent  until  towards 
the  end  of  the  Middle  Ages. 

§  36.  Equality  before  the  Law.  —  As  far  as  the  general  funda- 
mental princi])les  of  criminal  law  are  concerned,  during  the  later 
Middle  Ages,  the  life  of  the  unfree  was  legally  protected  just  as 
the  life  of  freemen ;  their  death  at  the  hands  of  their  master  was 
punishable  by  the  State  as  manslaughter.^  Although,  e.g.  as  in 
the  Italian  statutes,  severe  punishments  were  sometimes  provided 
for  "  forenses  "  in  contrast  with  "  cives  'V  and  in  the  cities  a 
distinguished  citizen  was  given  a  certain  right  to  chastise  unim- 
portant persons  and  those  of  the  rabble,''  and  consideration  was 
given  "  de  facto  "  to  the  person  in  the  application  of  the  law,  yet 
in  legal  theory,  the  equality  of  all  persons  before  the  law  was  a 
recognized  principle. 

Instigation,  Attempts,  Negligence,  and  Premeditation.  —  Insti- 
gation to  crime  (which  was  not  distinguished  from  moral  assist- 
ance and  thus  was  frequently  called  "  counsel  to  crime  ")  ^  was 
generally  punished  in  the  same  manner  as  the  physical  commission 
of  the  offense.  However,  in  many  cases  other  methods  of  ren- 
dering assistance  were  not  uniformly  treated  as  equally  important. 
A  general  conception  of  attempt  was  not  reached.^  Acts  which 
we  to-day  would  punish  as  attempts,  were  punished  as  acts  dan- 
gerous "  per  se  "  and  even  as  acts  which  pave  the  way  for  the 
commission  of  a  wrong.  In  many  sources  ^  the  distinction  between 
acts  committed  "  culpa  "  (i.e.  by  negligence)  and  those  committed 
"  dolo  "   (i.e.  with  malice)  is  correctly  made.^     Only  the  latter 

Frensdor^,  in  the  "Hansischen  Geschichtsblättern",  I,  pp.  17,  36;  "Ham- 
burger Recht  von  1270",  X,  6. 

'"  Schwabenspiegel ",  73  (Ed.  Lassherg). 

2  The  Jurists  raised  the  question  whetlier  such  statutes  were  permis- 
sible.    CJ.  Aiujclus  Ari'titius.  Ruhr.  "De  Bononia  hoinicidiiim",  n.  2. 

'  Sometimes  the  rabble,  public  portcTS,  and  pi'ojjlc  of  such  type  were  even 
excluded  from  the  "Stadtfrieden."  In  sucli  a  case  one  could  al>usesu('h  per- 
sons with  impunity,  so  long  as  the  Council  of  tlu'  City  did  not  exercise  its 
discretion  and  interfere.     CJ.  von  Maurer,  "Geschichte",  III,  p.  Kil. 

"  CJ.  John,  pp.  21.')  cl  seq.,  231  et  seq. 

*  CJ.  as  to  the  theories  of  attempt,  John,  pp.  141  el  seq. 

8  On  the  other  hand,  in  the  "  Schwabenspiegel ",  182-184  (Lassbcrg) 
we  find  unfortunaite  perversions  of  lh(<  correct  theory.  Here  homicide 
done  "culpa"  {i.e.  with  ne^digence)  is  treated,  through  a  misconception 
of  the  Roman-Canon  law  and  a  perversion  of  the  theory  of  the  "Talio", 
as  a  crime  deserving  the  death  peiuilty. 

^  CJ.  e.g.  "Sachssnspiegel",  II,  3S.     According  to  the  "Sachsenspiegel" 

103 


§  37]  THE   MIDDLE   AGES  [Part  I,  Title  II 

entail  physical  punishment.  We  often  find  a  special  rule  for 
crimes  committed  with  "  vorsate  "  {i.e.  ^  with  special  delibera- 
tion and  premeditation  —  especially  in  cases  of  bodily  injuries, 
etc. 

Moralizing  Tendencies.  —  The  effort  to  determine  more  exactly 
the  element  of  inner  guilt,  the  subjective  side  of  the  crime,  led 
to  many  futilities.  To  reach  right  solutions  was  impossible  with- 
out a  more  complete  juristic  development.  In  the  latter  ]\Iiddle 
Ages  the  number  of  the  judgments  by  the  "  Schöffen  "  (lay- 
judges)  moralizing  on  a  false  basis  is  by  no  means  inconsiderable. 
The  "  Schöffen  "  of  Brunn  inflicted  the  death  sentence  sometimes 
"  ob  malam  voluntatem  ",  and  they  banished  from  the  city  those 
who  in  despair  over  losses  at  dice  had  cut  off  their  own  thumbs.^ 
Such  a  tendency  is  especially  evident  in  the  treatment  of  suicide  ^° 
which  was  regarded  as  punishable  by  the  secular  law. 

Herein  may  doubtless  be  traced  the  influence  of  the  Church, 
and  indeed  the  Mosaic  law  was  regarded  as  divine  law  of  complete 
and  existing  efficacy.^^ 

§  37.  Effects  of  Changes  in  the  Law  of  Proof.  —  A  quite  pecul- 
iar effect  was  brought  about  by  the  change  in  the  old  Germanic 
law  of  proof.  Except  in  cases  where  the  accused  was  apprehended 
in  the  act  or  was  under  some  existing  legal  disability,  the  ancient 
law  set  him  free  if  he  took  oath  to  his  innocence.  Although  other 
elements  enter  into  the  origin  of  these  rules,^  their  practical  effect 
was,  in  the  one  case,  to  establish  a  presumption  of  innocence  and 
in  the  other,  i.e.  where  the  accused  was  apprehended  in  the  act 
or  was  under  some  legal  disability,  to  establish  a  presumption  of 
guilt. 

only  "wergeld"  was  paid  in  eases  of  homicide  resulting  from  negligence. 
Corporal  punishment  was  prohibited. 

*  The  meaning  of  "vorsate"  has  been  pointed  out  by  John,  pp.  64 
et  seq. 

"  "Brünner  Schöffenbuch",  N.  539,  270.  In  the  first  case  the  offender 
was  guilty  of  a  bodily  injury  very  reprehensible  from  the  moral  stand- 
point, but  there  was  no  possibility  to  surmise  an  intention  to  kill. 

1"  As  to  the  treatment  of  suicide  in  South  Germany,  cf.  Osenbrilggen, 
"Studien",  p.  337.  To  the  early  Germans  suicide  by  an  aged  man  weary 
of  life  seemed  honorable.  Later  it  was  regarded  as  a  relapse  into  heathen- 
dom, the  realm  of  Satan. 

"  Cf.  e.g.  "Schwabenspiegel",  201. 

1  The  law  of  proof,  in  cases  where  the  offender  was  caught  in  the  act, 
was  originally  nothing  other  than  a  justification  of  private  vengeance 
against  the  offender  who  was  in  one's  power.  Cf.  Dahn,  '" Fehdegang  und 
Rechtsgang  der  Germanen"  (1877),  and  especially  R.  Löning,  "Der 
Reinigungseid  bei  Ungerechtsklagen  im  deutschen  Mittelalter"  (1880), 
pp.  97,  98. 

104 


Chapter  IV]  MEDIEVAL   GERMANIC   LAW  [§  37 

This  presumption  of  guilt  was  now  given  extended  application, 
and  even  became  a  "  prsesumptio  juris  et  de  jure  ",  i.e.  amounted 
to  an  incontrovertible  finding  of  the  fact  of  guilt.  Thus  a  man 
suspected  of  counterfeiting  was  convicted  without  further  proof, 
if  a  certain  amount  of  false  money  was  found  on  his  person,-  or  a 
jnan  was  hung  for  theft  if  the  article  missed  by  another  was  found 
on  his  person  and  he  could  not  i)rove  purchase  from  a  third  party 
in  public  market/^  Thus,  especially  in  Southern  Germany,  the 
law  of  self-defense  came  to  be  particularly  deformed  as  a  result 
of  such  a  presumption  being  raised  to  a  rule  of  law.  From  the 
standpoint  of  proof,  if  a  distinction  is  sought  between  self-defense 
and  chance-medley,  it  is  not  improper  to  ask  if  he  who  alleges 
self-defense  has  himself  received  any  wounds  ^  or  if  he  endeav- 
ored to  avoid  the  aggressor.^  But  as  rules  of  sul)stantive  law 
such  presumptions  are  improper.  There  may  well  be  cases  of 
self-defense  in  which  wounds  have  not  been  received  by  the  accused, 
nor  three  steps  taken  in  retreat.^  So  long  as  in  cases  of  homicide 
it  was  only  a  matter  of  adjusting  the  payment  of  the  "  wergeld  ", 
such  presumptions  could  be  endured  and  something  could  be 
said  in  their  favor.  But  it  was  altogether  a  different  matter  if 
the  false  presumptions  had  as  their  result  the  beheading  of  the 
accused.^  It  became  still  worse  as  the  system  gradually  grew 
up  of  public  prosecution  of  offenses  by  State  officials,  for  a  private 
accuser  was  at  least  obliged  to  lay  an  information  charging  the 
offense,  and  often  was  placed  upon  oath.  But  a  crude  method 
of  considering  expediency  in  matters  of  police  control  resulted  in 
the  establishment  of  such  j)resumptions,^  and   led  e\en  to  the 

2  "Sachs.  Landr."  11,26  §  2;  "Stadtrechtsbueh",  Ruprecht  von  Frey- 
sing,  e.  57. 

3"Brünner  Sehöffenbuch",  N.  545.  Cf.  "Stadtrechtsbueh",  Ru- 
precht  von.  Freysing,  e.  21.  If  the  town  lioadlos  slow  anyone  who  went 
witliout  a  hfi^ht  in  tlie  ni^ht  and  did  not  aUow  himself  to  he  (aUen.  they 
could  free  themselves  by  oath  from  the  charge  of  manslauf:;liter.  saying 
they  had  done  the  deed  "frid  willen."  But  if  they  had  a  standing'  p:rudge 
against  the  slain  man,  then  they  were  forthwith  ohlifjed  to  sull'er  for  it. 
Yet  it  might  well  be  that  one  might  slay  for  a  justifiable  reason  another 
against  whom  one  hapi)ened  to  have  a  standing  grudge.  ('/.  also  id.,  c. 
38.  If  two  wer(!  taken  ha\ing  upon  them  stolen  goods  of  a  certain  \alue, 
both  were  hanged,     -altliough  one  asserted  Ids  innocence. 

*  "Bamberger  Recht"  (ed.  Zöpß),  §  ir,S. 

^  "S(diwal)enspieger'   (Lassberg),  c.  79. 

^  Cf.  Oscnhrnggcn,  "Das  Alamannische  Strafrecht",  pp.  151  ci  seq.; 
von  Bar,  "Das  Beweisurtheil  des  germanischen  Processes"  (Hannover, 
1860),  pp.  8(),  87. 

^  In  Constance  in  1443,  any  one  would  bo  beheaded  who  coidd  not 
positively  prove  that  he  had  retreated  three  stops.     Oscnhriigiirn,  p.  153. 

8  It  was  provided  by  a  statute  of  Strassburg,  of  1322,   §  175.  that  if 

105 


§  .'}7]  THE   MIDDLE   AGES  [Part  I,  Titij;  ]J 

practice  of  capital  punishment  for  acts  that  were  merelx'  danger- 
ous, e.g.  tlio  carryiii«!;  of  a  knife  forhidckMi  l)y  hivv.^ 

Arbitrary  Character  of  the  Law.  —  To  make  up  for  tiie  defi- 
ciencies of  the  procedural  kiw,  thus  ensued  an  increase  in  the 
severity  of  the  substantive  law.  And  this  substantive  law  itself 
acquired  a  certain  discretionary  or  arbitrary  character.  As  a 
result  of  the  instability  of  the  legal  system  of  the  entire  empire, 
the  law  had  to  be  periodically,  not  exactly  created  anew,  but  at 
least  again  put  in  force  and  declared  as  effective  for  the  smaller 
groups  and  communities.  It  might  almost  be  said  that  the  exist- 
ence of  the  criminal  law  was  merely  a  matter  of  contract  ^'^  or 
rested  upon  the  w^ill  of  the  ruler.  In  the  Middle  Ages  there  are 
even  cases  of  voluntary  submission  to  public  punishment  as  a 
penalty  for  mere  breach  of  contract.  At  times  no  hesitanc>'  was 
shown  in  punishing  with  cruel  penalties  even  the  most  insignificant 
offenses  when  they  were  opposed  to  the  interests  of  the  landowner 
or  might  derogate  from  the  respect  due  to  the  city.  That  penal- 
ties were  imposed  by  a  village  court  for  the  girdling  of  trees  is 
well  known  and  has  been  a  subject  of  frequent  comment. ^^  But 
it  is  not  the  only  example.  According  to  another  custumal,  a 
cruel  death  (to  be  inflicted  with  a  plow)  was  the  punishment  for 
a  destroyer  of  boundary  stones ;  ^-  while  by  a  third  custumal  ^^ 
the  burning  of  the  soles  of  the  feet  was  prescribed  for  one  who  had 
damaged  trees  in  the  forest.  According  to  the  "  Schöffenbuch  "  ^^ 
of  Brunn  any  one  who  reviled  the  "  Schöffen  ",  because  of  a  deci- 
sion he  believed  to  be  unjust,  was  to  be  nailed  to  a  stake  by  the 
tongue  until  he  cut  himself  loose.  In  the  Freiburg  "  Stadt- 
rechte  ",  ^^  the  death  penalty  was  prescribed  both  for  polluting 

any  one  wounded  or  slew  another,  then  the  penalty  of  loss  of  head  or 
hand  was  inflicted  upon  all  who  had  followed  him  bearing  drawn  swords, 
pikes  or  halberds,  just  as  upon  him  who  actually  inflicted  the  wound  or 
dealt  the  death  blow.     Osenhrilggen,  p.  169. 

^  Even  the  carrying  of  a  knife  of  forbidden  length  entailed  the  loss  of 
a  hand.  "Wiener  Stadtr.",  1221,  §  39.  "Rudolph  I  Landfrieden  of 
1281",  §  55  (Pertz,  "Legg.",  II,  p.  430).  Unauthorized  manufacture  of 
skeleton  keys  for  another  was  punishable  with  the  loss  of  a  hand.  "Briin- 
ner  Schöffenbuch",  N.  548.     Cf.  also  "Prager  Stadtrechtb.",  X.  57. 

10  The  "Landfrieden"  must  also  have  been  sworn  to  by  individuals. 
"Const.  Henrici  IV",  a.d.  1103  {Pertz,  "Legg."  II,  61);  "Rudolph  I 
Const,  pacis",  a.d.  1287,  c.  39  (Pertz,  "Legg."  II.  p.  451). 

"  Custumal  of  Oberursel  of  1401  {Grimm,  "Weisthiimer",  III,  p. 
489).  The  intestines  were  to  be  drawn  from  the  offender  and  wound 
around  the  tree.  Cf.  concerning  offenses  against  the  laws  of  the  forest 
and  chase,  during  this  period.  Roth,  "Geschichte  des  Forst-  u.  Jagdwesens 
in  Deutschland",  pp.  131  et  seq. 

12  Grimm,  III,  p.  590.  i»  md^  j^  p.  490.  »  N.  536. 

"  1520,  Fol.  95,  97. 

106 


Chapter  IV]  MEDIEVAL  GERMANIC  LAW  [§  38 

the  springs  of  the  city  and  for  laying  violent  hands  upon  the  night 
watchmen.  It  is  conceivable  that  the  first-mentioned  refined 
and  barbarous  punishments  were  not  actually  carried  out.  But 
they  were  not  mere  jests/^  and  they  reveal  that  such  penalties 
for  such  cases  were  deemed  justifiable. 

§  38.  Confusion  resulting  from  the  Term  "  Frieden."  —  As  is 
often  the  case  with  mere  words,  the  use  of  the  word  "  Frieden  "  was 
of  far-reaching  importance.  Since  from  early  times  grave  crimes 
had  been  called  "  Friedbrüche  "  (breaches  of  the  peace)  and  now 
their  punishment  was  no  longer  based  upon  some  especially  agreed 
or  pledged  peace,  it  was  an  easy  step  to  place  on  an  equality  ^  with 
these  grave  crimes,  in  respect  to  punishment,  minor  oft'enses 
which  were  forbidden  by  the  "  Landfrieden  "  or  "  Stadtfrieden." 
Thus,  even  in  the  Saxon  "  Landrecht  "  -  (which  upon  the  whole 
is  free  from  extravagances)  the  death  penalty  is  prescribed  for 
the  litigant  who,  after  being  enjoined  by  a  judge  from  the  use  of 
a  piece  of  land,  nevertheless  in  spite  of  the  "  Frieden  "  as  to  the 
same  declared  by  the  judge,  again  undertakes  its  cultivation. 
Although  it  may  of  course  be  argued  that  in  those  times  disobedi- 
ence towards  a  judge  or  lack  of  respect  for  judicial  decrees  were 
not  things  to  be  tolerated,  yet  such  abnormal  severity  can  be 
explained  only  from  the  association  of  this  "  Friedbruch  "  with  a 
"  Friedbruch  "  in  the  early  sense.  As  is  also  shown  by  the  Gos- 
lar "  Statuten  ",^  the  conception  of  a  "  Fried bruch  "  was  by  no 
means  limited  to  grave  crimes ;  as  a  result  of  this,  attainder 
("  Verfestung  ")  might  ensue  for  lesser  acts  which  also  were 
called  "  Friedbruch  ",  and  where  attainfler  attached  to  an  indi- 
vidual, his  life  was  forfeited,  no  matter  how  insignificant  may  have 
been  the  "  Friedbruch  "  of  which  he  was  guilty.^ 

1^  In  the  Middle  Ages  great  importance  was  often  attached  to  the 
spoken  word.     CJ.  the  case  in  Constance  cited  in  note  7  nnle. 

iThus  e.g.  by  "  Iludolph  I  Landfrieden"  of  1281,  §8  {Pcrtz,  "Legg." 
II,  p.  427)  the  unautliorized  keeping  for  sale  of  wines  and  liquors  was 
regarded  as  a  "Friedbruch."  In  connection  herewitli  it  may  l)e  noted 
that  where  the  offense  consisted  of  the  breach  of  a  specially  "pledged 
peace"  (or  of  a  peace  enjoined  by  the  state  authorities),  it  was,  according 
to  many  sources,  rather  the  formal  conception  of  a  violated  utterance 
that  formed  the  essence  of  the  ofTense,  c.q.  tlie  violated  command  of  the 
authorities.  Cf.  Schlierlinger,  "Die  Friedensbiirgscliaft  ",  pp.  12  et  seq., 
p.  59,  and  especially  "Sachs.  Landr.",  Ill,  •).  §  2:  "Brict  en  man  den 
vrede,  den  lie  vor  sic  selven  lovet,  it  gat  ime  an  den  hals." 

Mil.  20  §  3. 

^Göschen.,  "Goslar' sehe  Statuten",  p.  201. 

^  "Vestinge  nimt  den  manne  sin  lif,  of  he  begrepen  wirt  dar  binnen." 
"Sachs.  Landr.",  III,  (53,  §  3.  Göschen,  p.  477.  Cf.  p.  ÖG,  line  ö.') ;  j).  'ü , 
lines  12-14;   p.  59,  line  lü :    "Wert  en  in  der  veste  begripen,  de  vestiugho 

107 


§  38]  THE    MIDDLE    AGES  [Paut  I,  TiTLE  II 

Reversion  to  Primitive  Conceptions.  —  The  idea  that  legal  pro- 
tection depended  npon  one's  belonging  to  some  association  or 
group,  together  with  the  fact  that  even  within  as  well  as  outside 
the  walls  of  the  cities  there  was  but  little  actual  protection  afforded 
to  life  or  property  because  of  the  constant  feuds  and  the  continual 
increase  of  professional  rascality,''  resulted  in  a  revival  of  the 
most  primitive  and  harsh  conceptions  of  criminal  law.  The 
criminal  if  he  was  not  a  member  of  the  small  local  group  was 
again  regarded  as  an  enemy  against  whom  the  doing  of  any  act 
was  permissible.  Thus  e.g.  the  "  Stadtrecht  "  of  Augsburg,^ 
while  men  of  means  residing  in  the  city  were  treated  with  great 
consideration  in  respect  to  arrest  or  conviction,  provided  that  if 
a  stranger  scoffed  at  a  citizen  of  Augsburg,  everyone  should  run 
to  the  spot  and  that  thereupon  any  wounding  or  even  slaying 
of  the  stranger  was  permissible.  We  find  in  the  Laws  of  the  Cities 
("  Stadtrechte  "),  provisions  that  a  stranger  who  outside  of  the 
city  is  mistreated  or  wounded  by  a  citizen  can  obtain  no  satis- 
faction within  the  city  before  its  courts.^ 

Severity  of  the  Lavy.  —  Thus  criminal  justice,  especially  in  the 
States  of  the  South  of  Germany,  gradually  became  extremely 
harsh  and  cruel.  The  Statutes  of  Augsburg  of  1276  were  written 
in  blood.  The  hard-hearted  citizen-body,^  proud  of  their  wealth, 
caring  everything  for  property  and  little  or  nothing  for  the  life 
or  misery  of  the  poor  man,  were  willing  to  inflict  the  loss  of  a  hand 
as  a  penalty  for  merely  entering  an  orchard  or  grass  plot  with 
intent  to  steal,  while  prostitutes  (who,  as  is  well  known,  were 
numerous  in  even  the  respectable  cities  of  the  Middle  Ages)  were 
for  the  simple  violation  of  a  police  regulation  punished  by  slicing 
off  the  nose.^ 

Application  of  Mosaic  Lavr.  —  In  addition,  the  application  of 
the  Mosaic  Law  and  the  theological  idea  of  the  "  talio  "  (eye  for 

nimt  ime  dat  lif. "  CJ.  especially  Planck,  "Das  deutsche  Gerichtsver- 
fahren im  Mittelalter",  II  (1879),  p.  300. 

^Concerning  this  cf.  Cap.  a.d.  789,  c.  78  (Pertz,  "Legg.  I",  p.  65), 
and  especially  Ave-Lallemant,  "Das  deutsche  Gaunerthum"  (1858),  I, 
pp.  43  et  seq. 

6  Supplement  to  Art.  XXXV,  ed.  Meyer,  p.  105. 

'  Gaupp,  "Deutsche  Stadtrechte  des  Mittelalters",  II,  p.  xv. 

*  Also  in  North  Germany  outside  of  the  cities  there  were  death  penal- 
ties for  certain  cases  of  theft,  e.g.  serious  thefts  in  the  night  ("Sachs. 
Landi-."  II,  28),  theft  of  plows  from  the  fields  ("Sachs.  Landr."  II,  13, 
§  4).  Cf.  also  Osenbrüggen,''  Der  Nachtschach"  in  his  "Studien",  pp. 
241  et  seq. 

^  The  order  to  leave  the  city  within  the  sacred  forty  days.  "Augs- 
buiger  Stadtrecht",  113  (ed.  JMeijcr,  p.  190). 

1C8 


Chapter  IV]  MEDIEVAL   GERMANIC   LAW  [§  08 

an  eye,  etc.),  became  predominant,  especially  in  South  Germany. 
It  is  true  that  the  ^Mosaic  criminal  law  '°  by  no  means  appears  so 
harsh  as  may  be  inferred  from  a  mere  literal  interpretation  of 
single  passages;  and  the  "  cutting  off  ",  so  frequently  mentioned, 
refers  merely  to  an  avoidance  of  divine  wrath  and  not  to  an  actual 
punishment ;  often  the  "  talio  "  is  merely  the  basis  for  compensa- 
tion or  a  means  of  compelling  compensation.  But  in  the  Middle 
Ages  the  expressions  of  the  Mosaic  Law  were  construed  singly 
and  literally,  and  where  offenses  against  religion  and  morality 
are  concerned  it  is  in  many  respects  harsh  and  cruel.  The  idea 
of  the  "talio"  (originally  unknown  to  the  Germanic  law)''  often 
reappears  exactly  in  its  well-known  Mosaic  form  in  the  South 
German  statutes.'-  This  contributed  not  a  little  towards  making 
the  criminal  law  harsh  and  cruel,  and  the  more  so  since  its  alleged 
divine  origin  seemed  to  preclude  any  compromise  or  mitigation. ^^ 
Cruelty  of  the  Punishments.  —  Because  of  all  this,  cruelty  ^* 
and  studic<l  aggravation  ''  of  ])unishment  towards  the  end  of  the 
Middle  Ages  reached  the  last  extremity,  —  while  at  the  same  time 
it  was  generally  believed  that  this  was  but  the  performance  of  a 
task  pleasing  to  God.  The  concisely  stated  system  of  capital 
punishment  in  the  "  Sachsenspiegel  "  (II,  13)  ^®  the  severity  of 
which  is  shown  by  the  inclusion  in  theft  of  anything  of  three  shill- 

i"  Cf.  Saalschutz,  "Das  mosaische  Recht",  II  (1853),  pp.  437  et  seq.; 
Saalschütz,  "Archäologie  der  Hebräer",  II  (1856),  pp.  271  et  seq. 

^^  Grimm,  "Deutsche  Kechtsalterthümer",  p.  ö47 ;  Osenbrüggen, 
"Studien",  pp.  151  et  seq.  It  was  only  in  case  of  false  complaint  and 
in  a  few  related  cases  that  the  principle  of  "talio"  was  applied  in  the  old 
Germanic  law.  In  such  a  case  it  seems  especially  natural.  The  wrongful 
attack  was  turned  against  its  author. 

1^  Cf.  Osenbrüggen,  p.  153.  As  to  the  principle  of  "talio"  in  bodily 
injuries,  cf.  e.g.  "Stadtrechte"  of  Vienna  in  1221  (Gaiipp,  "Deutsche 
Stadtrechte  des  Mittelalters",  II,  p.  241).  Here  the  "talio"  was  applied 
only  in  case  the  wrongdoer  was  unable  to  pay  the  amount  of  the  composi- 
tion. In  the  "Stadtrecht  für  die  Wiener  Neustadt",  it  is  called  "se- 
cundum legem  institutam  a  Domino." 

1^  Concerning  the  opinions  prevailing  until  well  into  the  170ÜS  and 
their  effects  continuing  to  tlie  pr(!S(>iit  time,  see  below. 

^*  For  a  long  time  in  Nürnberg  women  were  buried  alive  for  simple 
theft.     Siebenkees,  "Materialen  zur  Nürnberger  Geschichte",  II,  p.  539. 

1^  If  e.g.  a  Jew  was  being  executed,  a  cap  of  glowing  pitch  was  placed  on 
his  head. 

^^  "Alle  mordere,  unde  die  den  plug  rovet  oder  molen  oder  kerken 
oder  kerchof,  unde  vorredere  unde  mortl)ernere,  oder  dii-  ire  bodescap 
wervet  to  irme  vromen,  die  sal  man  alle  radebreken.  Die  den  man  slat 
oder  vat  oder  rovet,  oder  bernet  sunder  mort brand,  oder  wif  oder  maget 
nodeget,  unde  den  vrede  breket,  unde  die  in  overhure  begrepen  werdet : 
den  sal  man  dat  hovet  af.slan.  Die  dü\e  hudet  oder  rof  o<li>r  einanne 
mit  helpe  dar  to  stärket,  werdet  sie  des  verwunnen  man  sal  over  sie  richten 
als  over  jene." 

100 


§  38]  THE  MIDDLE  AGES  [Part  I,  Title  II 

injijs  of  value,  contains  frequent  penalties  of  death  and  breaking 
on  the  wheel.  An  enumeration  of  the  forms  of  mutilation  used  as 
punishments  in  the  south  of  Germany  (branding,  cutting  off  the 
hand,  the  ears,  the  tongue,  putting  out  the  eyes)  is  revolting,  and 
the  modes  of  death  varied  between  breaking  on  the  wheel,  quarter- 
ing in  the  cruelest  manner,  pinching  with  red-hot  tongs,  burying 
alive,  and  burning.  Even  the  executioners  complained  about 
the  cruelty  in  the  infliction  of  the  punishments  required  of  them. ^'^ 
Gallows  covered  and  surrounded  by  corpses,  which  rotted  as 
they  were  devoured  by  birds  of  prey,  were  a  plain  mark  of  the 
neighborhood  of  an  important  court,  especially  a  city  court. '^ 

Failure  of  the  Law.  —  Yet  the  cruelty  of  these  punishments 
in  no  way  served  the  purpose  of  lessening  crime. ^^  "  Xec  his 
tormentis  et  cruciatibus  arceri  potest  quin  semper  scelus  sceleri 
accumulent,"  says  Celtes.  Professional  swindling  (reference  to 
which  can  be  found  as  early  as  in  the  Capitularies)  increased  as  a 
result  of  the  numerous  feuds,  and  developed  into  a  well-banded 
organization.-*'  The  smallness  of  the  judicial  districts,  the  limita- 
tions upon  the  jurisdiction  of  many  of  the  courts,-^  and  the  defec- 
tive legal  machinery,  impaired  the  power  of  justice  and  favored 
the  escape  of  criminals.  At  the  same  time  the  rabid  pitiless  hos- 
tility, especially  to  offenses  against  property,  of  a  criminal  law 

1^  In  Nürnberg,  in  1513,  the  executioners  complained  about  the  cruelty 
of  burying  alive.     Siebenkees,  p.  599. 

la  "Qui  delicta  eommittunt  levi  etiam  aliquando  causa  diversis  poenis 
et  generibus  tormentorum  exquisitis  afficiunt"  are  the  words  of  a  con- 
temporary, Conrad  Celtes  ("De  origine,  situ,  moribus  GermaniaB,  Norim- 
bergse")  in  giving  a  horrifying  description  of  criminal  justice  at  the  end 
of  the  1400  s.  (The  passage  from  this  book,  which  is  now  rather  rare,  is 
given  in  Malblank,  pp.  37  et  seq.,  and  Henke,  I,  pp.  290-292.) 

1^  In  the  sources  for  the  law  of  the  Middle  Ages,  frequent  mention  is 
made  of  imprisonment  ("Cippus"),  but  uniformly  only  as  imprisonment 
preliminary  to  trial,  and  generally  of  a  revolting  nature.  Cf.  also  Streng, 
"Das  Zellengefängniss  "  (Nürnberg,  1879).  Imprisonment  as  a  punish- 
ment occurred  only  occasionally,  in  cases  of  money  fines  for  breach  of 
police  regulations  where  the  offender  was  unable  to  pay  the  fine,  and  its 
duration  in  such  cases  was  short.  Cf.  e.g.  "Prager  Statutarrecht",  N. 
20,  21. 

2"  Cf.  concerning  Sebastian  Brandt's  "Narrenschiff",  and  the  "Liber 
Vagatorum",  with  its  clarion  warning,  published  by  Luther  with  a  preface, 
Ave-Lallemant,  I,  pp.  137  et  seq. 

21  The  baronial  courts,  which  could  not  use  the  blood  ban,  had  the  right 
only  to  take  preliminary  cognizance  of  graver  crimes  and  were  obliged 
to  deliver  the  criminal  to  the  public  coiu-ts  of  the  lord.  If  the  judge  did 
not  appear,  to  receive  the  criminal,  at  the  place  fixed  by  custom  for  the 
delivery,  the  criminal  was  bound  (symbolically)  with  a  straw  band,  i.e. 
he  was  allowed  to  flee  after  he  had  been  stripped  to  the  waist.  Cf.  Grimm, 
"Weisthümer",  111,  p.  640,  N.  6;  p.  685  and  Maurer,  "Geschichte  der 
Fronhöfe  in  Deutschland",  IV,  p.  406. 

110 


Chapter  IV]  MEDIEVAL   GERMANIC   LAW  [§  38 

enacted  and  administered  by  the  wealthier  class  had,  as  its  conse- 
quence, a  similar  hostility  on  the  part  of  the  offenders  and  their 
following.  Add  to  this  that,  through  the  dishonorable  punish- 
ment of  exposure  on  a  pillory  (for  lesser  offenses,  especially  the 
first  theft),  and  through  the  public  floggings,  the  sense  of  honor  and 
self-respect  was  lamentably  destroyed."  The  punishment  of 
infamy  (which  was  at  this  time  markedly  developed)  closed 
the  doors  to  most  of  the  honest  occupations,  and  the  frequent 
banishments  from  the  cities  and  the  country  districts  -^  made 
the  offenders  homeless  and  deprived  them  of  means  of  li\'eliliood. 
In  addition  to  this  a  deplorable  part  was  played  by  the  frequent 
confiscations  (partial  or  total)  of  property ;  this  penalty  applied 
not  only  to  treason  against  the  comnuuiity,  but  also  very  often 
to  homicide  and  even  to  severe  wounding,  and  to  lieresy.^^    It 

22  The  Middle  Ages  developed  a  considerable  number  of  dishonorable 
and  degrading  punishments,  which  in  part  had  a  humorous  aspect,  but 
which  if  they  did  not  render  the  offender  infamous  (permanently),  never- 
theless could  operate  to  his  disadvantage.  Among  these  we  find  the 
punishments  of  "Schandkorbes"  (literally  "disgrace  basket"),  the 
"Schnelle"  (infra),  the  "Badekorbes"  (literally  "bathbasket"),  the 
"Wippe"  ("strappado"),  ducking  into  water,  ridicule  by  children, 
riding  on  a  donkey,  carrying  a  plow-wheel  with  dogs  or  saddles,  etc. 
Cf.  Grimm,  "Deutsche  Rechtsalterthiimer",  pp.  725,  726;  \'on  Maurer, 
"Geschichte",  IV,  pp.  269  et  seq.,  pp.  378,  379.  Where  the  degrading 
punishment  consisted  in  the  carrying  of  an  object  —  a  mild  form  of  this 
sort  of  punishment  —  an  object  was  chosen  in  accordance  with  the  call- 
ing and  rank  of  the  offender.  Thus,  e.g.  a  bishop  was  obliged  to  carry 
some  paper  with  writing.  The  "Schnelle"  or  "Schuppe",  a  basket  out 
of  whi('h  the  offender  was  obliged  to  jump  into  a  puddle  or  into  a  horse- 
trougli,  was  much  used  in  the  case  of  bakers  who  did  not  bake  bread  of 
the  prcjper  weight.  Cf.  Osenbriiggen,  "Studien",  p.  364;  Gierke,  "Der 
Humor  in  deutschen  Rechte"  (1871),  pp.  48  et  seq.  Concerning  the 
"Scliuppcnstuhl",  a  punishment  much  in  use,  cf.  especially  Frensdorff, 
in  the  "Hansische  üeschichtsblättorn"  (1874),  pp.  30  et  seq. 

2^  As  to  this,  cf.  Walchner,  "Geschichte  der  Stadt  Radolphzell"  (1825), 
p.  70;  Ave-Lallemant,  I,  p.  87;  "Briinner  Schöffenbuch",  X.  540.  "Ab 
antiquo  consuetum  est,  quod  quicumque  pro  maleticio  flagoUetur  membris 
mutiletur  vel  aliter  secundum  justitiam  corpore  vitiatur,  illi  civitas  est 
interdicta."  As  to  banishment  in  Flanders,  cf.  Warnkünig,  "Flandrische 
Rechtsgeschichte",  III,  1,  pp.  173  et  seq.  In  Flanders  regular  circuits 
were  made  to  look  for  banislied  persons. 

2'  (f.  e.g.  City  law  of  Hagenau,  of  1164,  §§  12-15  (Gaupp,  "Deutsche 
Stadtrechte  des  Mittelalters",  I,  p.  98)  ;  City  law  of  Innsbruck,  of  1239, 
§  7  (Gaupp,  II,  p.  254).  The  grounds  for  these  extensive  confiscations  of 
property  are  not  sufficiently  ascertained.  In  the  time  of  the  Carolingians 
we  find  them  in  connection  with  exile  and  capital  punishment  (W'ailz, 
"Deutsche  Verfassungsgeschichte",  IV,  p.  439),  and  generally  for  breach 
of  faith  (Wailz,  HI,  p.  265)  and  also  in  graver  crimes  such  as  parricide 
and  incest.  Partial  confiscation  was  threatened  as  a  sui)plemcntary 
punishment  e.g.  in  the  "Constitutio  llenrici  III.  Langobardica  ül)er  den 
Giftmord"  (I'ertz,  "Legg."  11,  p.  42).  (As  to  th(>  gradual  mitigation  of 
this  punishment,  cf.  Osenbriiggen,  "Studien  ",  pp.  185  et  seq.)  In  my  view, 
the  confiscations  of  property  in  the  Middle  Ages  were  connected  in  ono 

111 


§  39]  THE   MIDDLE   AGES  [Paut  I,  TlTi.K  II 

became  much  restricted  in  the  later  enactments  ;  and  an  argument 
against  it  was  doubtless  found  in  the  maxim  that  a  man  pays  for 
ever.Nthing  with  his  head.  But  even  as  late  as  the  Carolina  (Art. 
21S)  it  was  found  necessary  to  limit  the  frequent  and  often  (juite 
illegal  confiscations  of  property,  whereby  "  wife  and  children  are 
reduced  to  bejigary." 

§  39.  Incidental  Circumstances  having  a  Demoralizing  In- 
fluence. —  There  were,  moreover,  a  number  of  incidental  cir- 
cumstances by  wdiich  the  demoralizing  influences  resulting  from 
so  crude  a  system  of  criminal  justice  were  greatly  increased. 

In  the  first  place,  in  the  case  of  many  crimes  and  especially 
in  manslaughter,  it  was  of  vital  importance  whether  judgment 
was  rendered  immediately  after  the  act  (or  what  amounted  to 
the  same  thing,  the  offender  was  caught  while  under  that  form  of 
conditional  outlawry  known  as  "  Verfestung  "),  or  whether  the 
offender  was  able  to  achieve  for  himself  temporary  safety  and  then 
to  negotiate  a  settlement  in  money.  It  was  only  in  the  former 
case  that  the  death  penalty  prescribed  for  manslaughter  was 
applied,  and  there  were  sometimes  even  express  provisions  to  this 
effect.^  Because  of  the  inadequate  legal  machinery  of  the  various 
territories  and  judicial  districts,  and  because  of  the  numerous 
free  States^  which  furnished  temporary  protection  to  fugitives, 

aspect  with  the  unfree  status ;  since  originally  they  were  to  the  advantage 
of  the  lord  of  the  city,  and  according  to  the  French  feudal  law  the  com- 
mission of  certain  crimes  by  the  feudal  tenant  caused  him  to  forfeit  his 
movables  to  his  lord ;  cf.  Du  Boys,  II,  p.  221  et  seq.  In  another  aspect, 
they  were  connected  with  the  fact  that  a  breach  of  the  peace  entailed 
outiawTy,  i.e.  the  loss  of  all  the  offender  possessed  within  the  community, 
as  confiscation  very  frequently  occurs  during  the  900  s,  1000  s,  and  1100  s. 

1  Cf.  e.g.  "Reehtsbr.  von  Passau"  of  1225,  §  24;  "Eisenacher  Statut" 
of  1283;  "Rechtbueh"  of  Duke  Albrecht  for  Klagenfurt  of  1338,  §8 
{Getigler,  "Deutsche  Stadtrechte",  p.  291).  As  to  Bremen  also,  it  is 
stated  by  Donandt,  "Versuch  einer  Geschichte  des  Bremer  Stadtrechts", 
II,  p.  289,  that  a  captured  slayer  was  beheaded ;  but  it  was  possible  for 
one  to  free  himself  from  outlawry  by  the  payment  of  money.  The  "Con- 
stitutio  Friderici  I  de  incendiariis "  of  1187  fixed  the  punishment  of 
decapitation  only  for  the  incendiary  who  was  captured.  On  the  other 
hand,  he  who  gave  himself  up  of  his  own  free  will,  or  relieved  himself  of 
the  attainder,  was  to  undergo  only  the  penance  (going  on  a  pilgi-image) 
infiicted  by  the  Church,  pay  compensation,  and  suffer  banishment  for  a 
year  and  a  daj'. 

2  Every  courtyard  of  a  lord,  and  later  every  place  of  residence  of  one  of 
his  officers,  was  a  "free  place",  whence  one  could  negotiate  for  a  monej"" 
settlement  of  a  ease  ("Freihöfe").  Customarily  the  fugitive  had  si.x 
weeks  and  three  days  for  this  purpose ;  even  at  its  expiry  he  was  not  re- 
quired to  be  delivered  up,  but  he  could  be  brought  to  a  place  {e.g.  in  a 
forest)  from  which  further  fiight  was  easily  possible.  There  were  penalties 
of  considerable  severity  for  the  violation  of  this  right  of  asylum,  which 
originally  belonged  to  the  courtyard  of  anyone  who  was  entirely  free. 

112 


Chaptkr  IV]  MEDIEVAL    GERMANIC    LAW  [§  39 

wealthy  offenders  who  had  numerous  friends  and  rehitives  must 
often  have  been  able  to  attain  temporary  safety  and  negotiate 
a  settlement.  On  the  other  hand,  every  crime,  for  which  condi- 
tional outlawry  (i.e.  "  Verfestung  ")  was  pronounced  against  the 
fugitive  offender,  entailed  the  death  penalty  in  case  the  offender 
was  captured.^     This  conditional  outlawry,  in  case  the  offender 

Cf.  Von  Maurer,  "Geschichte",  IV,  pp.  246  el  seq.,  and  also  Frauenstädt, 
"Blutrache  und  Todtschlagsühne  im  deutsehen  Mittelalter"  (1881). 
pp.  öQ  et  seq.  Frequently  this  right  of  the  '"free  i)laees"  was  based  upon 
a  privilege  granted  by  the  emperor  or  prince.  Later,  privileges  of  this 
character,  because  of  the  e\il  conditions  to  which  they  gave  rise,  were 
only  granted  under  limitations.  —  In  this  connection  belong  the  provisions 
of  the  statutes  of  cities  relating  to  the  peace  of  the  home  ("hausfriede"). 
Anyone  who  fled  to  the  house  of  another,  if  the  judge  himself  did  not 
demand  him,  was  temporarily  secure  from  arrest.  He  who  was  al)le  to 
reach  his  own  home,  had  there  a  definite  period  of  peace,  within  which 
he  w^as  often  able  to  make  good  his  escape.  Cf.  Osenbriiggen,  "Der 
Hausfrieden"  (1851),  pp.  26  el  seq.,  pp.  40  el  seq. 

^  "Sachs.  Landrecht",  III,  63,  §  3.  "Vestinge  nimt  dem  manne  sin 
lif,  of  he  begrepen  w^ert  dar  binnen."  "Augsburger  Stadtrecht"  of 
1276,  Art.  XXXVIII.  "Swer  in  der  aht  ist,  wert  über  den  gerichtet, 
den  sol  man  ouch  das  haupt  absiahen.  .  .  ."  Cf.  Göscheri,  "Goslar'sche 
Statuten",  p.  477.  However,  this  severity  could  not  always  be  kept  up, 
when  in  the  cities  the  punishment  of  "Verfestung"  began  to  be  extended 
to  less  important  cases,  as  e.g.  in  the  law  of  Lübeck.  Although  originally 
the  distinction  between  "Verfestung"  and  "Stadt Verweisung"  was 
clearly  marked,  —  the  latter  being  a  punishment  inflicted  upon  one  who 
was  absent,  and  the  former  being  a  penalty  for  contumacy  on  the  part 
of  one  who  Avas  absent  {Frensdorff,  p.  x.xiv)  —  "Verfestung"  often 
resulted  in  "Stadtverw'eisung"  and  involved  complete  or  partial  con- 
fiscation of  property.  Cf.  Frensdorff,  p.  Hi.  It  had  also  many  varieties 
{Frensdorff,  pp.  xx,  xxi).  "Acht"  ("ähta"  or  "ahtunga"  i.e.  "perse- 
cutio")  or  "Verfestung"  ("proscriptio")  is  not  a  punishment  of  a  crime, 
although  many  have  so  regarded  it  (e.g.  Ilalsehner,  p.  31  ;  Wailz.  Vl,  p. 
492;  II ago  Meyer,  "Das  Strafverfahren  gegen  Abwesende",  pp.  68  el 
seq.).  It  is  rather  (as  has  been  correctly  pointed  out  by  R.  Loning,  "Der 
Vertragsbruch  und  seine  Rechtsfolgen",  I,  p.  219)  an  incident  of 
procedure  resulting  from  the  refusal,  in  a  serious  case,  to  apjjear  before 
the  court.  It  was  only  when  this  refusal,  by  persons  of  certain  ranks  and 
classes  (especially  those  who  could  avail  themselves  of  a  feud),  came  to 
be  customary  and  regular,  that  "Acht"  actually  assumed  the  character 
of  punishment.  The  practical  effect  of  "Verfestung"  was  that,  as  a 
result  of  the  contumacious  behavior,  the  punishments  provided  for 
the  offense  became  increased  to  capital  punishments  (thus  Frensdorff, 
J),  xviii).  "Verfestung"  (or  "Acht"  as  it  was  generally  called  when 
declared  by  the  kings)  is  simply  a  milder  form  of  outlawry.  No  one 
was  allowed  to  furnish  food  or  roof  to  one  against  wdiom  "Verfestung" 
or  "Acht"  had  been  pronounced.  Yet  such  a  one  was  not  entirely  bereft 
of  aU  rights.  The  accuser  however  gained  the  privilege  of  making  proof, 
and  according  to  the  law  of  Lübeck  lie  was  required  to  prove  merely  the 
"Verfestung,"  and  not  the  charge  as  a  result  of  which  the  "Verfestung" 
had  arisen  (Frensdorff,  p.  xxix). 

It  is  peculiar  to  the  "bannitio"  of  the  Italian  statutes,  to  which  the 
Italian  jurists  gave  so  mucli  attention,  that  the  "l)amiitus"  could  be 
attacked  with  impunity  by  anyone,  (('[nrus,  §  "  Hoinicidium "  n.  71, 
even  raises  the  question  whether  the  "bannitus"  could  avail  himsrlf  of 
the  plea  of  self-defense  against  a  person  who  attacked  him  relying  upon 

113 


§  39]  THE  MIDDLE  AGES  [Pakt  I,  Title  U 

f]i(l  not  relieve  himself  thereof  within  a  year  and  a  (la\',  became  a 
complete  and  absolute  attainder  within  the  district  whose  judge 
had  pronounced  the  sentence.^ 

Private  Settlement  in  Cases  of  Crime.  —  In  spite  of  the  punish- 
ments of  life  and  limb  so  often  categorically  expressed,  there  ob- 
tained as  a  matter  of  fact,  not  only  in  cases  of  manslaughter  ' 
and  wounding,  but  often  in  cases  even  of  robbery  and  theft, ^ 
the  so-called  "  Taidigung  ",  i.e.  private  settlement  with  the  injured 
or  possibly  w'ith  his  relatives.  The  authorities  of  a  city  were 
often  in  need  of  preserving  the  peace  between  two  of  its  powerful 
families,"  and  for  a  long  time,  in  cases  of  manslaughter,  the  inter- 

this  impunity  provided  by  statute.)  Herein  is  seen  the  influence  of  the 
numerous  factional  strifes  of  the  Italian  cities. 

*  In  order  to  make  the  "Verfestung"  more  extended  in  its  application, 
it  could  be  brought  up  before  a  higher  judge  and  ultimately  before  the 
court  of  the  king.  In  such  case  it  came  to  be  imperial  outlawry,  applicable 
to  the  entire  empire.  "Verfestung"  pronounced  in  certain  courts  was 
"ipso  facto"  applicable  to  the  entire  territory.  Frequently  agreements 
were  made  between  the  cities  for  the  mutual  observance  of  sentences  of 
proscription  pronounced  by  any  of  them.  As  to  this,  c/.  H.  Meyer  (cited 
above),  pp.  86  et  seq.,  and  Frensdorff^  pp.  xxiv  et  seq.  According  to 
the  "Br (inner  Schöffenbueh",  n.  482,  anj^one  proscribed  for  theft  was 
hanged,  upon  a  mere  written  request  certifying  that  he  had  been  justly 
proscribed.  According  to  the  "  Sehleswig-Holstein'schen  Landtheilung  " 
of  1490,  banishment  was  to  apply  to  the  whole  country.  Cf.  vo/i  ]\'urn- 
stedt,  "Zur  Lehre  von  den  Gemeinde-Verbänden,  kritische  Beleuchtung 
des  Rechtsstreits,  betr.  die  Glückstädter  Strafanstalten"  (1878),  p.  34. 
We  find  in  the  cities  and  also  in  the  royal  courts  certain  lists  of  those  who 
had  incurred  "Verfestung"  and  "Aclit"  ("Liber  proscriptorum").  Cf. 
"Alberti  I  Const,  pacis",  1303  §  37.     Pertz,  "Legg.",  II,  p.  483. 

*  Moreover,  in  many  places  intentional  manslaughter  not  involving 
high  treason  was  not  punished  with  capital  punishment  until  the  Carolina 
came  into  effect.  According  to  the  "Braunschweigische  Echteding"  of 
1532,  n.  XXIX  {Hänselmann,  " Urkundenbuch  der  Stadt  Braunschweig", 
p.  342)  it  entailed  banishment  from  the  city  for  fifty  j-ears,  a  money  fine 
of  thirty  guilder  paj^able  to  the  council,  and  settlement  uith  the  blood 
relatives  of  the  party  slain.  Concerning  the  securing  of  immunity  by 
the  payment  of  money  even  in  cases  of  murder,  in  Flanders,  cf.  Warn- 
könig, "Flandrische  Rechtsgesehiehte",  III,  1,  p.  160. 

^  Cf.  "Klagspiegel",  Title  "de  poenis"  (fol.  31b  of  the  Strassburg 
edition,  1533).  "Item  Du  solt  mercken,  das  vmb  ein  yegldich,  darumb 
dann  über  das  blutgericht  möcht  werden,  getaidingt  vnd  übereinkommen 
mag  werden  on  pen."  Until  1527  the  nobility  in  the  Älark  of  Branden- 
burg claimed  the  unlimited  right  to  make  a  settlement  with  "Wergeld" 
and  "Gewette"  for  even  maUeious  manslaughter.  Cf.  Hälschner,  "Ge- 
schichte", p.  117,  and  for  remarkable  illustrations  in  the  1600  s  in  Han- 
nover (Vogtei  Celle),  cf.  Büloio  und  Hagemann,  "Practisehe  Erörterungen" 
II,  p.  260. 

^  Concerning  peaces  proclaimed  by  the  authorities,  which  not  only  the 
famiUes  but  also  their  "famuli"  and  "servi"  were  bound  to  observe,  cf. 
e.g.  "Brünner  Schöffenbuch",  n.  530,  534  and  also  "Wormser  Reforma- 
tion", VI,  2.  tit.  23.  {Cf.  also  Osenhrüggen,  "Studien",  p.  483.)  It 
frequently  happened  that  a  pledged  peace  was  declared  void  by  the 
interested  parties.  This  liberty  in  turn  came  to  be  restricted  by  the 
statutes. 

114 


Chapter  IV]  MEDIEVAL   GERMANIC   LAW  [§  39 

vention  of  a  criminal  judge  was  regarded  only  as  a  last  resort  in 
case  the  families  concerned  could  come  to  no  agreement.^  In 
order  to  prevent  pri\-ate  feud-vengeance  they  often  compelled  the 
relatives  of  a  man  who  had  been  slain  to  accept  compensation. 

When  once  a  complaint  had  been  lodged,  there  could  be  a  settle- 
ment only  with  the  approxal  of  the  judge,^  antl,  if  the  accuser  with- 
out such  approval  discontinued  the  prosecution,  he  was  himself 
subject  to  fine.^°  However,  this  approval  of  the  judge,  who  re- 
ceived the  fee  which  was  paid  (the  ancient  "  Fredum  ")  and  often 
something  besides,  was  not  difficult  to  obtain,  and  thus  the  right 
of  administering  justice  (which  was  granted  as  a  piece  of  property, 
as  appurtenant  to  a  fief),  was  always  regarded  as  a  source  of 
revenue. ^^ 

The  "  Grace  "  of  the  Rulers.  —  Here  one  can  observe  the  work- 
ing out  of  the  old  conception,  viz.  that  since  the  king  has  the 
authority  to  protect  the  peace,  a  violation  of  the  peace  is,  as  it 
were,  a  wrong  done  to  the  king  or  ruler  and  that  in  the  settlement 

*  In  Italy,  it  was  for  a  long  time  a  matter  of  controversy  whether  or 
not  a  "pax"  concluded  with  the  party  injured  precluded  the  criminal 
prosecution.  As  to  this,  cf.  Bonifacius  de  ]'italinis,  "Ruhr,  de  poenis", 
n.  4  et  seq.  This  writer  also  discusses  ^\ith  great  clearness  many  dubious 
points  therewith  connected,  e.g.  whether  compromise  is  permissible  where 
there  are  many  heirs.  As  to  the  extraordinary  favor  shown  to  atone- 
ment for  manslaughter  in  northern  Germanj',  even  late  in  the  Middle 
Ages,  cf.  notably  Frauenstädi,  pp.  13ö  el  seq.  Frequentlj"  the  relatives 
of  the  slain  forbore  bringing  a  complaint  because  of  fear  for  themselves. 
Frauenstädi,  p.  169. 

^  The  "pax"  or  "remissio"  required  in  Italy  also  the  "approbatio" 
of  the  court.  {Cf.  the  very  clear  description  in  Clarus,  §  fin.  qu.  58.) 
Even  in  the  middle  of  the  1500s  the  "pax"  played  an  important  part. 

'0  "Sachs.  Landr.",  I,  53,  §  1,  II,  8;  "  Stadtr.  von  Ens  von  1212".  §  21 
(Gaiipp,  II,  p.  222) ;  "Wiener  Stadtr.  von  1221  ",  §  31  ;  "  Brünner  Sehöf- 
fenbuch  ",  n.  52  ;  "  Klagspiegel  ",  Tit.  "  de  poenis  ",  Fol.  131b. 

"  Cf.  concerning  such  "Taidigungen",  especially,  Zöpfl,  "Das  alte 
Bamberger  Recht,  als  Quelle  der  Carolina",  p.  114.  The  obligations 
assumed  in  such  cases  were  very  exactly  observed.  In  the  year  1328 
a  man  killed  another  in  Bamberg,  and  in  expiation  pledged  himself  to 
perform  church  penance  together  with  his  relations.  If  he  did  not  ful- 
fill this  obHgation  he  was,  A\dthout  possibility  of  pardon,  to  be  immediately 
put  to  death.  It  was  as  if  he  had  upon  oath  offered  himself  for  execu- 
tion in  case  he  did  not  fulfill  his  pledge,  and  apparently  even  if  his  rela- 
tives refused  to  join  him  in  the  church  penance.  Cf.  supplement  V,  n. 
CIV  to  the  "Bamberger  Recht"  in  Zö/>.//,  p.  164  of  the  "Urkundenbuch". 
and  Zöpß  (cited  above),  p.  115.  The  importance  of  the  element  of 
voluntary  subjection  appears  in  the  instance  cited  by  (\iiitzotr,  "Pom- 
merania",  II,  p.  448  (r/.  Jcircke,  "Handbuch",  I,  p.  32)  in  the  '70s  of 
the  1400  s.  A  young  man  of  good  family  had  unintentionally  in  a  jest 
killed  his  friend.  His  friend's  relatives  allowed  him  to  be  sentenced  to 
death,  intending  to  later  set  him  free,  and  having  in  mind  to  gain  credit 
for  themselves  for  having  given  him  his  life.  The  condemned  num,  how- 
ever, was  too  proud  to  accept  this,  and  permitted  himself  to  be  executed 
at  the  churchyard,  and  refused  all  consolation  from  the  e.xecutioner. 

115 


§  39]  THE   MIDDLE   AGES  [Part  I,  Title  TI 

of  this  wrong  he  may  act  in  his  discretion  and  pleasure  just  as  a 
wronged  private  citizen  might  act  in  regard  to  feud  and  composi- 
tion. Both  in  the  royal  ordinances  ^^  and  in  the  statute  books  of 
the  local  lords  ^^  there  is  often  to  be  found  the  indefinite  threat 
that  the  individual  violating  a  certain  order  or  ])rohil)ition  shall 
forfeit  the  "  grace  "  or  "  mercy  "  ("  Gnade  ",  "  misericordia  ") 
of  his  king  or  lord.  This  "  grace  "  ^'*  had  to  be  regained  by  the 
payment  of  a  sum  sometimes  fixed,  but  more  often  determined 
at  the  discretion  of  the  king  or  lord.  The  offender  was  often 
allowed  peace  for  a  certain  time  until  he  could  collect  this  sum. 

It  was  understood  that  this  "  grace  "  was  to  be  interposed  where 
a  definite  punishment  was  threatened,  and  that  this  right  belonged 
not  only  to  the  lord  but  also  to  his  officials.  Yet,  where  it  was  a 
wrong  against  a  private  person  that  constituted  the  offense,  this 
"  grace  "  could  be  interposed  only  with  the  consent  of  the  party 
injured,^^  or  where  he  did  not  insist  upon  the  extreme  letter  of  the 
law.  Where  a  man  had  been  slain,  this  consent  had  to  be  given 
by  his  relatives.  All  this  shows  how  deeply-rooted  was  the  old 
idea  that  a  crime  Avas  primarily  a  violation  of  a  specific  individual 
right  and  only  incidentally  a  wrong  to  the  established  law  and 
order.  When  not  influenced  by  some  base  motive,  it  was  fre- 
quently the  intercessions  of  the  Clergy  or  the  prayers  of  the  rela- 
tives (or  friends)  ^^  of  the  offender  which  caused  the  judge,  instead 
of  giving  the  regular  sentence  (some  penalty  of  life  or  limb),  to 
sentence  the  offender  to  pay  a  money  fine,  or  to  go  upon  a  pil- 
grimage, or  perform  some  other  pious  work.  It  is,  however,  very 
apparent  that  although  no  legal  distinction  was  herein  made  be- 
tween the  poor  and  humble  and  the  rich  and  prominent  yet  there 
was  a  great  practical  distinction.     The  former  did  not  have  those 

12  Cf.  Waitz,  VI,  pp.  450  et  seq. 

13  Cf.  e.g.  "Freiburger  Stiftungsbrief"  of  1120  §  14  (Gaupp,  II,  p.  21) : 
"gratiam  Domini  ducis  amisit."  "Stadtrecht"  of  Dattenried  of  1358 
§  26  (Gaupp,  II,  p.  180).  Death  sentences  were  often  worded:  "sit  in 
potestate"  (or  "in  gratia",  or  "in  misericordia")  "domini."  Cf.  Warn- 
könig.  III,  p.  162. 

"  Cf.  the  oldest  statute  of  Soest,  §  6  (Gengler,  p.  441)  :  "Causa  quse 
.  .  .  mota fuerit et  terminata  vel  per  justitiam  vel  per  misericordiam  .  .  ." 
Kaiser  Sigmund  in  1433  granted  the  city  of  Luzern  a  special  privilege  in 
respect  to  judgments  subject  to  "grace." 

1^  Hälschner,  "Geschichte",  p.  45. 

1^  According  to  "Peinliche  Halsgeriehtordnung  von  Davos"  in  Switzer- 
land in  the  year  1650,  on  the  last  day  of  the  session  of  court,  the  question 
was  to  be  asked,  "If  any  man  or  woman  spiritual  or  secular  would  inter- 
cede for  the  pardon  or  mitigation  of  punishment  of  the  poor  persons." 
In  this  it  was  sought  to  secure  a  scrutin3%  by  the  moral  sentiment  of  the 
people,  of  the  severity  of  the  judgment. 

116 


Chapter  IV]  MEDIEVAL  GERMANIC  LAW  [§  39 

influential  mediators  upon  whom  the  latter  could  rely.  Hence, 
sometimes,  the  judges  would  not  dare  to  inflict  a  well-deserved 
death  sentence  upon  a  prominent  person ;  in  so  doing,  they  deemed 
that  they  were  but  acting  in  accordance  with  custom. 

Other  Peculiar  Customs.  —  Often,  according  to  an  old  custom 
(surviving  even  until  the  end  of  the  1600  s),  the  condemned  was 
permitted  to  live,  if  some  woman  (originally  only  a  virgin)  desired 
him  for  a  husband.  Later  this  peculiar  law  also  found  applica- 
tion where  a  condemned  woman  was  desired  by  some  man  as  a 
wife.^'' 

Influence  of  Accidental  Circumstances.  —  An  influence  was 
accorded  also  to  accidental  circumstances.  Thus  the  executioner 
had  the  right  to  free  for  a  money  payment  every  tenth  man  who 
was  delivered  to  him  for  execution. ^^  As  in  the  primitive  periods, 
the  criminal  was  not  executed  outright  but  rather  offered  as  a 
victim  to  the  elements,^^  so  later  mere  chance  was  often  allowed  to 
prevail  as  a  sign  of  forgiveness  manifested  by  God,  and  thus  to 
preclude  the  carrying  out  of  the  sentence.-" 

Uncertainty  of  the  Court  Procedure.  —  Most  important  of  all, 
the  uncertainty  of  the  cojtrt  jn-occdurc  should  be  considered,  espe- 
cially the  law  of  proof  in  the  later  Middle  Ages.  A  description  of 
this  must  be  left  to  the  historian  of  criminal  procedure.-'  We 
find  strange  combinations  of  the  Germanic  and  Roman  rules 
of  proof,  —  oath  of  purgation,  proof  by  compurgators  and  wit- 
nesses, "  ex  parte  "  proof,  and  confrontative  proof  (wherein  a 
hearing  is  given  to  both  sides).     There  was  also  often  torture. 

'^  Cf.  Osenbrüggen,  pp.  377  et  seq. 

1^  "Sachsenspiegel",  111,56  §  3.  "Sehwabenspiegel",  126  (Lassberg). 
" Landrechtsbueh  Ruprechts  von  Freysing",  Cap.  88.  As  to  this  cf. 
especially  Abegg,  "Zeitschrift  für  Deutsches  Recht",  vol.  15,  p.  76.  On 
the  other  hand  the  executioner  often  decided  the  method  of  death  punish- 
ment.     Abegg,  p.  58,  etc. 

1'  Placing  in  a  boat  without  helm  or  rudder  is  mentioned  in  the  Sagas. 
Grimm,  p.  721.  Cf.  also  record  of  the  Cloister  F'rauen-Chiemsee 
{Grimm,  " Weisthiimer",  III,  p.  671),  where  a  proceeding  of  this  sort 
was  ordered,  in  a  case  where  the  judge  before  whom  the  offender  was 
triable  was  not  on  hand.     As  to  this,  cf.  Osenbrnggm,  p.  341. 

^''  As  e.g.  in  capital  punishment  by  hanging,  if  the  rope  used  in  hanging 
the  accused  broke.  Abegg,  "Zeitschrift  für  Deutsches  Rechts",  vol.  16, 
pp.  317  et  neq.  In  Zürich  in  the  1.500  s  and  1600  s  the  punishm(>nt  of 
drowning  for  the  killing  of  children  was  so  done  that  to  hv  saved  was 
not  impossible,  and  thus  th(»  punishment  assumed  the  form  of  a  judgment 
of  God,  Osenbrüggen,  p.  348.  At  times  some  influence  may  have  resulted 
from  the  idea  that  the  execution  as  a  judicial  act  had  come  to  a  formal 
end.     Cf.  the  case  in  Basel  given  by  Osenbrüggen,  p.  353. 

"'  [Consult  Vol.  V  of  the  present  Series,  Esmeins  "  Historj'  of  Continen- 
tal Criminal  Procedure."  — Ed.] 

117 


§  39]  THE   MIDDLE   AGES  [Part  I,  Title  II 

The  old  accusatorial  procedure  ~  is  still  found,  hut  of  a  kind  so 
deformed  hy  a  preliminary  official  investigation  hased  on  torture 
that  it  contained  only  a  shadow  of  its  former  character.  There 
was  also  a  number  of  popular  turbulent  methods  of  procedure  for 
■cases  where  the  ofi'ender  was  apprehended  in  the  act  and  for  cases 
having  to  do  with  persons  of  bad  reputation.^'^  Moreover,  it 
•was  not  with  injustice  that  the  author  of  the  "  Klagspiegel  "  ^^ 
speaks  of  "  the  foolish  old  hen  judges  in  the  villages  ",  better 
qualified  to  sit  in  judgment  on  the  cases  of  "  knavish  chickens  " 
and  "  other  rascally  cattle  ",  than  cases  of  offenses  under  the 
criminal  law.  In  the  year  1496,"'^  almost  immediately  after  its 
organization,  the  Imperial  Supreme  Court,  having  reference  to 
the  complaints  coming  almost  daily  from  all  parts  of  Germany 
about  the  injustice  and  arbitrary  actions  of  the  criminal  courts, 
addressed  itself  to  the  imperial  assembly  sitting  at  Lindau  in  the 
following  significant  words :  ^'^  "  Item  so  teglich  wider  Fürsten, 
Reichsstet  vnd  ander  aberkeit  in  klagweis  in  einem  gericht  an- 
bracht wird,  das  sy  leute  unverschuldet  an  Recht  vnd  redlich 
Ursach  zum  tode  verutheilen  vnd  richten  lassen  haben  sollen  vnd 
durch  die  Fründt  rechts  wider  dieselben  begert  ...  ist  bescheids 
not,  wie  es  .  .  .  am  Cammergericht  gehalten  werden  sol."  The 
Reichstag  of  Freiburg  in  Breisgau  in  1498  thereupon  passed  the  fol- 
lowing decree :  "^  "  Auf  den  artickel,  dass  viele  zu  dem  tode  one 
recht  vnd  unverschuldt  verurteylt  werden  .  .  .  wirdet  not  seyn, 
deshalb  ein  gemein  Reformation  und  Ordenung  in  dem  Reich 
fürzunemen,  wie  man  in  criminalibus  procediren  soil." 

22  As  appears  in  the  "Nürnberger  Halsgeriehtsordnung." 
2'  The  so-called  "Leumunds verfahren." 

2*  Rubric  "Quando  judex  per  se  inquirere  potest",  fol.  113a  of  ed. 
1533,  Strassburg. 

25  Müller,  "Reichstheatrum",  II,  78,  446.  Cf.  Brünnenmeister,  "Die 
Quellen  der  Bambergensis "  (1879),  p.  1. 

26  "Insomuch  as  complaints  are  daily  brought  in  court  against  princes, 
states  of  the  realm,  and  other  authorities,  that  they  cause  people  who 
are  innocent  under  the  law  and  against  whom  there  is  no  genuine  case, 
to  be  sentenced  and  condemned  to  death,  and  whose  friends  demand  that 
justice  be  done  .  .  .  there  is  need  for  instructions  as  to  what  course 
shall  be  taken  by  the  court." 

"  "Neue  Sammlung  der  Reichsabschiede",  II,  p.  46,  " Reiehsabschied 
zu  Freiburg",  §  34.  "As  to  the  claim  that  many  who  are  innocent  are 
sentenced  to  death  in  contravention  of  the  law  ...  it  is  necessary  to 
undertake  a  general  reform  and  regulation  in  the  empire  as  to  procedure 
in  criminal  matters." 


118 


Chapter   V 

SCANDINAVIA  AND  SWITZERLAND   IX  THE   LATER 
MIDDLE  AGES 


A.    Scandinavia  ^ 


§  39a.  Early  Customary  Law. 
Primitive  Feuds  and 
Kin  Vengeance ;  Private 
Fines  ;  Limitation  of  Pri- 
vate Vengeance ;  Church 
Mulcts. 

§  396.  The  Provincial  Codes. 
Growth  of  Public  Au- 
thority ;  System  of 
Public       and       Private 


§39c. 


Fines  ;  Procedure ;  Ac- 
cessories ;  Elements  of 
Money  Forfeitures ; 

Forty-Mark  and  Three- 
Mark  Causes ;  Felo- 
nies ;  Other  Public 
Punishments. 
Penal  Legislation  a.d. 
1300-1500. 


§  39a.  Early  Customary  Law.  Primitive  Feuds  and  Kin  Ven- 
geance. —  There  is  perhaps  no  other  branch  of  law  in  the  history 
of  which  the  progressive  development  of  the  social  state  and 
public  authority,  and  the  reconstruction  of  society,  are  so  plainly 
traceable,  as  in  criminal  law.  Here  individual  independence  is 
perceived  to  yield  and  gradually  become  subjected  to  State  control. 
Public  right  presses  forward  alongside  of  private  right  until  it  takes 
the  lead  and  dominates.  This  development  takes  place  mostly 
by  way  of  customary  law.  Its  course  can  not  be  positively  as- 
signed to  definite  periods,  but  is  nevertheless  clearly  evidenced 
both  by  historical  testimony  and  also  in  the  sources  of  the  law. 
For  ancient  times,  the  Sagas  and  the  Icelandic  Gragas,  with  the 
earliest  sources  of  Norwegian  law,  reveal  much  to  us ;  and  in  the 
later  pr()\incial  codes  are  found  many  traces  which  markedly  refer 

'  [§§  39  a,  b,  c,  are  from  Stem.\nn's  "Den  Dansko  Rotshistorie,"  and 
auxiliary  sources,  named  in  detail  in  the  Editorial  Preface.  The  portion 
from  Stemann  is  translated  in  full,  omitting  only  the  footnote  quotations 
there  given  from  the  Scandinavian  texts,  and  an  occasional  passage  of 
detailed  illustration  ;  from  the  other  sources  a  few  gaps  have  been  sup- 
plied by  the  Translator's  condensation  and  insertion.  —  Ed.] 

119 


§  39rt]  THE  MIDDLE  AGES  [Pakt  I,  Title  II 

to  tlu'  early  conditions  no  longer  prevalent ;  the  new  order  of  things 
forms  in  its  turn  a  transition  to  the  system  of  later  legislation. 

A  leading  work  on  the  history  of  criminal  law,  including  the  na- 
tions of  the  North,  and  largely  utilized  in  later  treatises  on  this 
subject,  Wilda's  "  Straf  recht  der  Germanen  ",  -  emphatically 
disputes  the  assertion,  advanced  especially  by  Uogge  in  "  Das 
Gerichtwesen  der  Germanen",  ^  that  a  real  law  of  crimes  and 
l)unishments  was  almost  unknown  in  primitive  ages.  But  the 
conflict  between  these  views  is  not  so  great  as  it  appears  to  be. 
Only  the  entire  absence  of  such  a  law  in  early  times  is  by  the  one 
view  denied,  while  by  the  other  only  a  relatively  small  importance 
and  a  limited  sphere  are  ascribed  to  it.  It  must  be  acknowledged 
that,  when  the  historic  age  commences,  faint  traces  are  already 
found  of  a  law  for  the  punishment  of  crimes  in  its  modern  sense. 

Crime  in  modern  penal  justice  is  considered  chiefly  as  an  infrac- 
tion of  the  law  in  its  objective  sense,  and  punishment  as  a  means  of 
restoring  public  law  and  order.  But  the  sole  concern  in  the  early 
ages  was  the  individual's  injury ;  it  was  left  to  the  injured  party 
himself  to  procure  reparation,  both  for  the  outward  material  dam- 
age inflicted  and  for  the  personal  contumely.  This  authority 
to  wreak  vengeance  ("  Hsevn  ")  on  the  offender,  by  the  aid  of  his 
kin  if  needed,  was  limited  only  by  public  opinion,  founded  on  the 
natural  sense  of  right  and  custom  and  usage.  A  feud,  or  relation 
of  hostility,  arose  between  the  wrongdoer  and  the  sufferer,  and 
their  respective  blood-kindred ;  this  could  be  settled  by  reconcilia- 
tion alone,  which  frequently  w^as  attainable  only  after  a  feud 
("  Feide  ")  of  long  duration.  Such  a  pact  was  generally  condi- 
tioned on  the  payment  of  a  fine  ("  B0de  ") ;  this  was  deemed  to  be 
not  only  reparation  for  the  physical  damage,  but  also  satisfaction 
for  the  impeached  honor. 

The  narratives  of  various  events,  found  in  the  Sagas  (especially 
from  the  close  of  the  800  s  to  the  commencement  of  the  1100  s), 
which  undoubtedly  have  a  historical  basis,  describe  almost  exclu- 
sively gross  acts  of  violence  and  wrong,  mayhem  and  murder. 
In  the  latter  case  it  behooved  the  kin  of  the  slain  to  wreak  blood 
vengeance  (Sagas  of  Niala,  Viga  Styrs,  Heidaviga,  Grettis,  and 
Vatnsdaela).  While  it  was  held  to  be  a  sacred  duty  not  to  leave 
unavenged  the  slaying  of  kin,  and  hence  the  acceptance  of  a  money 
satisfaction  was  deemed  dishonorable,  nevertheless,  the  circum- 
stances were  taken  into  consideration,  especially  the    provoca- 

2  HaUe,  1842.  »  Ibid.,  1820. 

120 


Chapter  V]  SCANDINAVIA  [§  39a 

tion  and  the  mode  (whether  the  crime  was  committed  in  the  heat 
of  passion  or  dehberatelyj,  and  also  the  conduct  of  the  wrongdoer 
subsequently.  On  this  latter  point  the  early  law-texts  of  Sweden 
and  Norway  contain  extensive  provisions.  Thus,  under  the  Gotland 
law-text,^  the  slayer  could  tender  reparation  for  the  life  only  after 
a  year  had  elapsed ;  during  this  period  he,  with  his  nearest  rela- 
tives, must  at  first  abide  in  hallowed  places  of  refuge,  or  sanctu- 
aries, and  thereafter  in  distant  and  unfrequented  localities,  in  order 
to  escape  the  "  Haevn  ",  or  exaction  of  the  toll  of  blood  for  blood. 
Should  the  tender  not  be  accepted  at  the  expiration  of  that  period, 
he  must  resume  such  a  mode  of  life  for  the  two  following  years ; 
but  the  law  expressly  declares  that  the  acceptance  of  the  "  B0de  " 
(or,  amount  of  penalty  and  satisfaction)  after  the  lapse  of  the  first 
year  should  not  disgrace  the  family  kin.  By  the  Östgöta  law-text  ■" 
the  tender  could  be  made  only  after  three  years ;  and  similar  re- 
quirements are  contained  in  the  early  Gula-thing  law-text.^  Un- 
til expiation  is  made  (according  to  Andreas  Suneson) "  the  murderer 
must  absent  himself  from  the  sight  of  his  opponent,  lest  he  offend 
him  by  his  presence. 

Private  Fines.  —  Reconciliation  was  made  either  at  the  "  Thing  " 
or  in  front  of  the  court  ("  Retten  "),  and  the  amount  depended  on 
the  parties'  negotiations.  Instances  are  noted  where  this  determi- 
nation was  left  to  the  party  wronged  or  to  the  kin  entitled  to  prose- 
cute the  cause ;  and  in  some  isolated  cases  the  amount  was  fixed 
by  the  guilty  one  himself  ("  Sjaelfdsemi  ").  As  a  rule,  however, 
settlement  was  negotiated  by  agents  appointed  by  both  sides 
("  Voldgiftsmsend  ",  the  men  of  the  violence-gift),  who  were  chosen 
by  the  relatives  or  chieftains.  In  order  that  the  ofl'cnder  might 
present  himself  in  safety  at  the  peace  parleys,  proclamation  was 
made  for  his  immunity  from  attack,  confirmed  by  a  solemn  oath 
from  the  hostile  party  ("  Grid,"  "  Gruth  "),  for  his  journey  forth 
and  back,  and  for  the  entire  time  until  the  affair  should  be  decided. 
For  such  guaranties  there  occur  formulas  ("  Gridamal  ")  in  the 
Sagas  and  the  Gragas ;  and  even  as  late  as  the  provincial  (\)des 
this  warrant  of  security  is  referred  to ;  its  breach  being  termed  a 
"  deed  of  infamous  treachery."  ^ 

*  [Circa  a.d.  1300  —  Transl.] 
5  [Circa  a.d.  1300  —  Transl.] 
«  [Circa  a.d.  1200  —  Transl.] 

'  [Archbishop  Suneson,  whose  writings  (a.d.  1206-1215)  are  noted  as 
one  of  the  sources  of  Scandinavian  law,  in  Professor  Hertzberp's  account, 
in  Vol.  I  of  the  present  Series  (Ch.  1.  Part  VII,  §  14.  p.  54.')).  —  Transl.) 

*  "Heres  occisi  .  .  .  debet  adversariis  suis  interim  pacem  promittere 

121 


§  39al  THE  MIDDLE  AGES  [Pakt  I,  Title  II 

After  reconciliation  made  and  the  mulct  paid  over,  it  was 
incumbent  upon  the  transgressor  and  his  kin  to  make  the  "  oath 
of  equality  "  (''  Ligheds-Eed").  This  declared  that  if  he  himself  had 
suffered  the  wrong,  he  would  have  entered  into  accord  on  the  same 
conditions;  the  intent  being  to  grant  to  the  wronged  kin  a  bill 
of  honor,  by  the  offender's  express  declaration  that  there  was  no 
disgrace  in  accepting  the  mulct  instead  of  demanding  revenge. 
Thereupon,  the  treaty  was  affirmed  by  the  surviving  kin  with 
another  oath  ("  Trygdeed  "),  securing  for  the  guilty  party  and 
his  kin  full  peace  and  safety  for  the  future.  This  oath,  for  which 
a  very  solemn  formula  is  prescribed  in  the  Gragas,  was  given  by 
the  law-text  of  Skaane,^  only  in  cases  of  murder,  while  the  oath  of 
equality  was  also  given  in  cases  of  reparation  for  wounds  and  blows. 

The  community's  public  authority  interfered  only  where  the 
crimes  were  directed  not  against  individuals  but  against  all  the 
people,  or  where,  by  reason  of  the  perfidy  or  treachery  of  their  com- 
mission, they  were  deemed  extremely  vile  and  heinous.  Otherwise, 
the  community's  only  concern  was  that  the  cause  was  conducted 
in  accordance  with  custom  and  usage.  It  may  be  assumed,  how- 
ever, that  the  members  of  the  "  Thing,"  in  some  instances,  when 
the  proceedings  were  held  there,  brought  some  influence  to  bear 
on  the  accord  and  reconciliation. 

Limitation  of  Private  Vengeance.  —  At  an  early  period,  notably 
after  the  introduction  of  Christianity  and  under  the  influence  of 
the  priesthood,  bounds  were  placed  on  the  practice  of  exacting  per- 
sonal revenge,  —  partly  as  to  its  extent  (permitting  it  only  for  delib- 
erate and  grave  crimes) ,  and  partly  as  to  the  time,  place,  and  manner. 
Thus,  it  was  authorized  by  the  Gragas,  in  certain  instances,  only 
at  the  very  time  and  place  of  the  offense  ("  a  vighvalli  ") ;  in  others, 
at  the  next  general  assembly  ("  Al-thing  ").  But  in  all  cases  it 
was  incumbent  upon  the  avenger,  after  slaying  the  offender,  im- 
mediately to  announce  his  act  to  his  neighbors  and  witnesses,  who 
were  thereafter  to  testify  at  the  "  Thing  "  ;  for  he  was  bound  to 
enter  the  cause  at  the  next  "  Al-thing  "  and  make  complaint 
against  the  deceased,  in  order  to  have  judgment  whether  he  was  to 

et  eandem  in  signum  indissolubilis  firmitatis  contingendo  manu  sua 
manum  alterius  alicuius  roborare,  et  hoc  facto  ad  maiorem  seeuritatem 
aliquis  de  prudentioribus  debet,  paeis  illius  deum  custodem  et  factorem 
cum  Sanctis  omnibus,  cum  apostolico,  cum  rege,  cum  pontifiee.  cum 
iustis  omnibus  invocare,  execrari  vero  quemlibet  et  anathematizare, 
qui  promisse  paci  presumpserit  obviare"  (Suneson,  V,  6). 

'  [The  modern  province  of  Skane,  in  southern  Sweden.  —  Traxsl.] 

122 


Chapter  V]  SCANDINAVIA  [§  39a 

be  proscribed  and  outlawed  for  his  deed.  Another  cause  con- 
tributing to  Hmitations  of  the  "  Hsevn  "  (or  revenge)  was  the 
development  of  the  principle  of  "  peace  ",  or  "  fred  ",  —  already 
known  even  in  the  mythological  age.  This  signified  an  inviolate 
peace  proclaimed  over  certain  places  and  periods.  The  practice 
was  gradually  extended,  so  that  every  man  was  immune  and  en- 
joyed in  his  home  and  premises  the  rights  of  a  sanctuary 
("  Huusfred  "),  or  in  his  ship  ("  bunka?  brut  "),  or  at  the  cus- 
tomary public  meeting-places  (including  the  Eyre  and  the  journey 
thither  and  back),  viz.  the  market,  the  church  and  churchyard 
(and  going  to  and  fro),  as  well  as  the  "  asylum  courtyard  ",  an- 
nexed to  the  churches  and  monasteries.  During  "  hallowed  " 
periods  of  the  year,  also,  the  "  peace  of  God  "  prevailed  ("  pax 
ecclesiastica  ").  Even  as  early  as  the  reign  of  Canute  the  Great  his 
Church  law  mentions,  in  connection  with  the  Church  peace,  the 
king's  peace.  Valdemar  II  promulgated  an  order  for  a  special 
peace,  to  prevail  ever\'where  in  the  presence  or  vicinity  of  the 
monarch ;  and  this  also  appears  in  the  law  of  Skane. 

While  the  right  of  "  Hsevn  "  (vengeance)  was  thus  gradually 
confined  in  divers  modes,  and  the  wrongdoer  on  the  other  hand 
was  afforded  the  opportunity  to  ward  oft'  retribution  by  negotiating 
for  reconciliation,  there  came  about  eventually  a  customary  law 
regulating  the  amounts  of  the  fines  and  damages  in  cases  of  various 
oft'enses,  until  a  definite  "  B0de  "-system  was  developed.  In  cases 
of  grave  wrongs  the  injured  party  was  still  generally  permitted  to 
choose  between  accepting  the  tender  and  wreaking  vengeance. 
But  even  here  curtailments  were  made.  Self-redress  more  and 
more  ceased  to  be  viewed  as  a  right  or  even  as  permissible,  as  the 
conception  and  treatment  of  crime  and  its  logical  consequences 
gradually  changed.  Such  heinous  crimes  came  already  at  a  very 
early  period  to  be  considered  not  only  as  private  oft'enses  but  also 
as  breaches  of  public  peace  and  order.  Fines  must  be  paid  not 
only  to  the  offended  individual  but  also  to  the  king.  Thus  the 
"  bode  "  was  no  longer  merely  a  reparation  and  satisfaction  for  the 
injured  party,  but  also  a  penalty  for  the  breach  of  the  general 
peace.  When  the  oft'ender  failed  to  pay  the  amount  of  the  penalty, 
or  when  his  guilt  was  so  great  as  not  to  be  redeemable,  he  was 
placed  under  ban  and  doomed  to  be  an  outlaw,  or  punished  by  death 
or  by  corporal  suffering.  These  public  retributions,  which  for  a 
long  time  figured  as  exceptions  to  the  general  practice  of  "  bode  "- 
payments,  became  in  the  course  of  time  constantly  more  frequent. 

123 


§  :i*)a]  THE   MIDDLE   AGES  [Part  I,  TiTLE  II 

Church  Mulcts.  —  In  these  changes  (as  already  noted)  the  ec- 
clesiastics exercised  considerable  influence.  This  was  partly  due 
to  the  social  injfluence  of  the  teachings  of  the  Roman  Church,  in 
which  crime  and  punishment  were  conceived  as  offense  and  atone- 
ment before  God ;  and  partly  to  the  special  ecclesiastical  penal 
code,  which  in  the  course  of  time  more  and  more  extended  its  sway. 
Canute  the  Holy  (so  Saxo  relates)  bestowed  upon  the  bishops  and 
priests  exclusive  jurisdiction  over  misdemeanors  committed  di- 
rectly against  religion  and  the  Church.  Under  this  class  of  of- 
fenses, the  Church  laws  of  Skane  and  Sjselland  ^°  enumerate  of- 
fenses against  the  peace  of  the  Church  or  of  God  ("  Ilielghsebrut  "), 
against  the  person  of  the  priest  and  church  property,  and  other 
direct  infractions  of  the  Church  canons.  The  priest  also  exer- 
cised co-ordinate  jurisdiction  with  the  regular  authority  in  other 
grave  penal  causes. 

The  ordinances  referred  to  provide  that  for  breaches  of  the  peace 
of  the  Church  the  mulct  should  be  three  marks ;  and  if  the  of- 
fender did  not  possess  that  amount,  it  behooved  the  parish,  in 
Skaane,  to  pay  the  priest  for  him,  while  in  Sjselland  he  was  sub- 
jected to  a  severe  fast.  Other  misdeeds  calling  for  Church  mulcts 
were  church  robbery,  incest,  adultery,  manslaughter,  maltreat- 
ment of  church  officials  and  their  near  relatives  and  homicide 
generally.  In  most  cases,  money  penalties  were  exacted.  Hein- 
ous crimes  were  punished  with  excommunication  and  anathemas ; 
these  being  of  two  degrees,  one  excluding  the  offender  from  all 
intercourse  without  the  church  as  well  as  within,  and  the  other  only 
from  the  actual  church  and  its  ministrations.  This  ecclesiastical 
jurisdiction  was  generally  exercised  by  the  bishop  on  his  regular 
circuit  through  his  district;  the  matter  being  brought  to  his  at- 
tention upon  complaint  or  by  general  rumor.  For  secret  crimes, 
the  Church  law  provided  that  where  the  criminal,  before  being 
accused,  had  admitted  the  crime  in  the  sacrament  of  confession, 
and  received  a  certificate  of  the  priest,  he  should  be  exempt  from 
further  punishment ;  indicating  that  by  such  confession,  and  the 
penance  therein  imposed,  he  was  deemed  to  be  restored  to  grace 
with  God  and  the  Church  ;  so  that  even  where  the  crime  later  be- 
came revealed,  he  was  not  amenable  to  punishment  at  the  hands 
of  the  prelates,  and  the  latter  sought  to  extend  this  immunity 
so  as  to  bar  the  secular  power  from  action. 

"  [Circa  a.d.  1170.  —  Transl.] 
124 


Chapter  V]  SCAXDIXAVIA  [§  396 

§  39/^.  The  Provincial  Codes.'  Growth  of  Public  Authority. — 
In  the  provincial  Codes  not  only  do  numerous  traces  remain  of 
the  "  Haevn,"  and  especially  the  blood  vengeance,  as  an  important 
factor  in  the  system  of  retribution,  but  it  is  also  frequently  referred 
to  as  the  very  reason  for  some  of  the  new  provisions.  It  is  appar- 
ent from  the  context  that  private  revenge,  while  no  longer  deemed 
compatible  with  the  social  order,  was  nevertheless  still  so  deeply 
rooted  in  the  common  conscience  that  the  taking  of  a  life  on  that 
ground  was  not  classed  with  other  offenses  of  the  same  order,  — 
at  least  where  the  deed  was  not  so  done  as  to  bar  it  from  condona- 
tion. 

This  conception  appears  in  the  procedure  and  oaths  required 
of  the  guilty  party  in  negotiating  for  reconciliation,  in  order  to  es- 
cape the  retaliation,  and  also  in  the  determination  and  di\'ision  of 
the  fines  and  damages.  The  laws  expressly  refused  the  excuse  of 
"  Ha?\'n  ",  where  the  slaying  was  a  breach  of  a  pledge  of  peace 
during  pending  negotiations,  or  where  reconciliation  had  been  made 
and  satisfaction  accepted ;  in  such  cases  the  deed  was  punished  as 
one  without  provocation.  But  under  the  prevailing  general  rule, 
though  a  fine  was  incurred  by  blood  vengeance,  the  ordinary 
punishment  for  slaying  a  man,  viz.  outlawry,  was  not  inflicted. 
The  Jydske  Code,^  distinguishes  such  homicides  and  those  done  in 
perilous  necessity  or  self-defense,  from  those  committed  on  an 
inoffensive  victim  or  "  causeless  man."  Though  self-defense  thus 
relieved  from  punishment,  it  did  not  excuse  the  pa>'ment  of  repara- 
tion ;  it  was  sometimes  a  matter  of  doubt  whether  an  act  done  in 
an  affray  was  one  of  defense  or  of  revenge.  Indeed,  some  expres- 
sions in  these  laws  seem  to  assume  that  the  injured  party  had  the 
right  of  choice  between  prosecuting  the  offender  or  practising  ven- 
geance, which  right  the  law  aimed  to  restrict.  Only  in  one  case 
do  any  of  the  provincial  Codes  expressly  authorize  a  deed  of  ven- 
geance on  the  spot, — -the  wronged  husband  had  the  right  to  kill 
or  wound  the  adulterer  while  in  the  bed  itself. 

This  limitation  of  the  practice  of  private  revenge  may  be  con- 
sidered as  the  first  important  step  in  the  transition  from  the  con- 
ception of  crime  as  an  aft'air  of  purely  i)rivatc  right  to  tluit  of  the 
later  penal  system.  Similar  marks  of  transition  are  also  found 
in  other  provisions  of  the  provincial  Codes.     The  basic  i)rincii)lr 

>  [These  codifications  date  during  the  1200  s  in  Denmark.  Norway,  and 
Iceland,  and  during  the  1300  s  in  Sweden.  See  Chap.  II,  Part  V'll, 
pp.  547-5.5Ö,  Vol.  lof  this  Series,  "General  Survey."  —  Tran.sl.I 

2  [a.D.  1241.  —  Transl.) 

125 


§  30;^]  THE    MIDDLE   AGES  [Part  I,  TiTLE  II 

advanced  by  Archbishop  Andreas  Suneson,  that  the  power  of  the 
State  inflicts  punishment  in  order  to  correct  the  evil  will  and  intim- 
idate from  offenses  is  recognized  in  some  passages  of  the  preface 
of  the  Jydske  Code,  unmistakably  of  canonical  origin,  yet  this 
doctrine  is  not  practically  carried  out  in  the  Code,  for  the  reason 
that  the  view-point  of  private  right  still  appears  as  mainly  predom- 
inant. Public  authority,  nevertheless,  asserted  itself  in  various 
directions ;  its  right  and  duty  is  recognized  not  only  to  procure 
reparation  for  the  injured  party,  but  also  to  punish  the  wrong- 
doer, in  order  to  effect  a  restoration  of  the  peace  and  an  atonement 
for  the  offense  itself. 

System  of  Public  and  Private  Fines.  —  Under  the  provincial 
Codes,  an  offense  may  ordinarily  be  discharged  by  "  B0de  ", 
signifying  both  fine  and  reparation ;  outlawry  or  other  punishment 
is  inflicted  only  for  heinous  crimes.  Distinction  is  made  between 
three  classes  of  infractions  :  the  first  including  all  ^\Tongs  for  which 
satisfaction  is  paid  to  the  party  injured,  only ;  the  second,  all  acts 
for  which  is  incurred  a  fine  payable  to  public  authority ;  the  third, 
such  breaches  of  right  as  are  not  atonable  with  money  payments. 
These  differences,  which  also  determined  the  mode  of  accusation 
and  prosecution,  depended  on  the  subjective  nature  of  the  act  and 
other  circumstances. 

Public  penalties  were  imposed  only  where  there  w^as  deliberation 
and  guilty  intent ;  for  these  alone  made  the  act  a  breach  of  public 
order.  Under  the  general  rule,  therefore,  fines  were  not  payable 
to  the  king  or  the  bishop  for  accidental  harms ;  but  here  the  in- 
jured party,  as  a  rule,  could  demand  the  "  B0de  "  ;  this  reparation 
being  due  for  the  harm  done  him,  whether  with  or  without  intent, 
by  the  person  causing  it.  Thus,  though  a  fine  might  be  required 
in  addition  to  the  damages,  and  though  the  law  of  many  localities 
made  no  distinction  in  this  respect  between  intentional  and  un- 
intentional acts,  it  is  nevertheless  apparent  that  the  relation  be- 
tween the  act  and  its  effects,  as  well  as  the  nature  of  the  omission 
or  carelessness,  were  taken  into  consideration. 

Hence  the  distinction  between  the  "  act  of  hand  "  and  the 
"  handless  risk"  ("  Handagserning  "  and  ''handlös  wathse  "). 
The  latter  included  primarily  such  injuries  as  were  not  caused  by 
any  one's  personal  activity,  but  by  cattle  or  inanimate  things  which 
were  chargeable  to  some  one's  safe  custody  (in  which  cases  a  small 
penalty  was  payable) ;  it  also  included  other  harms  attributable  to 
some  prior  personal  act  having  a  consequence  not  anticipated. 

126 


Chapter  V]  SCANDINAVIA  [§  396 

This  difference  of  degree  of  nej^ligence  is  not  expressed  in  general 
rules,  but  it  is  nevertheless  noticeable  in  specific  provisions.  Thus, 
in  a  case  mentioned  in  the  earlier  law-texts,  where  several  men 
are  cutting  down  a  tree  and  its  fall  causes  the  loss  of  a  life,  the  other 
laborers  must  pay  three  marks  to  the  nearest  relative  of  the  de- 
ceased ;  this  provision,  however,  being  limited,  (according  to  Erik's 
Law  of  Sja^land,^)  to  cases  where  the  accused  had  ceased  to  take 
part  in  the  task  and  left  the  spot.  Where  the  tree  slips  from  the 
hands  of  any  one,  the  latter  pays  the  total  fine.  For  death  or 
wounds  caused  by  a  weapon  not  owned  })y  the  user,  the  owner  is 
fined  three  marks  if  he  loaned  it  for  that  purpose,  or  a  smaller 
amount  if  it  was  taken  without  his  knowledge  or  against  his  will. 
A  fine  is  likewise  imposed  upon  one  who  so  negligently  places  his 
weapon  that  it  falls  and  wounds  or  kills  another ;  the  Jydske  Law 
extending  this  rule  to  chance  injuries  from  a  weapon  held  in  the 
owner's  hand.  For  death  or  personal  injuries  suffered  from  the 
overturning  of  a  wagon  or  the  stroke  of  a  rider  on  the  road,  the 
driver  or  rider  is  compelled  to  pay  either  the  full  "  B0de  "  for  a 
deliberate  act,  or  a  less  amount  according  to  the  degree  of  his  care- 
lessness or  the  contributory  negligence,  if  any,  of  the  victim. 
Similar  rules  came  into  vogue  for  injuries  to  cattle. 

The  fine  ("  B0de  ")  paid  to  the  injured  party  being  regarded 
as  reparation  for  harm,  and  that  paid  to  public  authority  as  a  pen- 
alty for  the  act  itself,  the  former  was  incurred  by  parents  for  of- 
fenses committed  by  children,  but  not  the  latter,  except  in  later 
legislation  for  manslaughter. 

Procedure.  —  In  all  cases  where  the  offended  party  alone  was 
entitled  to  exact  "  B0de  ",  it  was  left  wholly  to  him  whether  he 
should  accuse  and  prosecute,  or  negotiate  for  reconciliation,  or 
waive  his  rights  and  pardon  the  wrong.  Where  public  penalties  of 
punishment  were  ordained,  in  addition  to  private  damages,  the  in- 
jured party  was  primarily  entitled  to  institute  the  charge  ;  but  his 
right  to  settle  or  abandon  the  case  was  limited  in  various  ways, 
in  the  interest  of  pu})lic  authority.  The  rule  is  accordingly  laid 
down  in  the  law  of  Skane,  King  Erik's  Law  of  Sjjelland,  and  other 
Northern  legislation,  that  after  reconciliation  made  for  a  wrongful 
act  as  being  accidental,  the  royal  official  was  emjiowered  to  require 
verification  by  oath  that  the  act  was  not  wilfid  ;  the  injured  party 
to  be  the  first  of  the  defendant's  witnesses.  Moreover,  the  au- 
thority of  the  official  to  prosecute  immediately  after  an  ofi'ense 
3  [About  A.D.  1250.  —  Transl.) 
127 


§  :i!t6]  THE   MIDDLE   AGES  [Part  I,  Titlk  If 

or  to  carry  on  a  cause  instituted  by  a  private  person,  is  recognized, 
by  the  law  of  Sjielland  especially,  in  sev^eral  provisions  ;  evidencing 
that  this  power  could  be  exercised  to  a  considerable  extent.  And 
if,  in  general,  the  right  of  accusation  belonged  to  the  private  party, 
and  tliat  of  the  king's  representative  was  only  subsidiary  and  ex- 
ceptional, yet  it  appears  from  specific  provisions  that  the  latter 
could  commence  or  intervene  in  the  proceedings  on  almost  any 
occasion,  wherever  there  was  reason  to  fear  that  the  jurisdiction 
of  the  king  would  be  lost  because  of  the  unw^illingness  or  inabilit\' 
of  the  private  prosecutor  to  institute  or  proceed  wath  the  action. 

This  privilege  applied  to  all  cases  of  murder  and  "  forty  mark  " 
offenses,  wherein  the  complainant  either  sought  to  wreak  personal 
vengeance  or  was  unable  to  start  or  follow  up  the  prosecution.  So 
also,  in  cases  of  wounds,  for  which  the  victim  had  failed  to  accuse  or 
proceed  in  the  cause,  the  official  could  prosecute  the  offender,  and  in 
addition  the  injured  party  was  fined  three  marks  for  his  laxness. 
In  all  these  instances,  however,  official  complaint  was  conditioned 
upon  the  wrongful  act  being  an  undoubted  fact  and  notorious 
throughout  the  "  Herred  "  or  district.  Larceny  and  robbery  w^ere 
subject  to  official  prosecution  only  when  suit  was  instituted  but  not 
follow^ed  up  by  the  victim  ;  the  latter  then  being  also  subject  to  fine. 
While  the  object  of  such  public  action  in  the  foregoing  cases  was 
solely  that  of  enforcing  the  king's  prerogative  to  exact  fines,  without 
controlling  the  relation  between  the  parties  committing  and  suf- 
fering the  oftense,  other  cases  are  enumerated  in  the  laws  in  which 
it  was  the  duty  of  the  public  official  to  assist  the  complainant, 
when  a  helpless  widow  or  minor,  or  a  person  sojourning  abroad 
without  relations  able  to  prosecute  his  claim.  Then  (as  well  as  in 
all  cases  where  the  offended  person  had  not  forfeited  his  right  by 
laches),  it  was  the  duty  of  the  official  to  secure  satisfaction  for  the 
private  party  first  and  then  for  the  king. 

Crimes  subject  to  outlawry  and  not  atonable  by  money  fines, 
were  to  be  prosecuted  by  the  king's  official ;  and  for  these  the  pri- 
vate victim  was  permitted  neither  to  accept  damages  or  renounce 
his  right  of  vengeance,  without  the  consent  of  the  king.  In  the 
region  of  the  Jydske  law,  a  pact  between  the  inhabitants  and  their 
bishop,  made  with  royal  sanction,  in  122S,  indicates  that  a  rule  here 
prevailed,  similar  to  that  of  Sjselland,  that  official  prosecution  could 
be  made  for  wounds  only  when  the  victim  had  made  a  complaint, 
or  where  the  misdeed  was  open  and  notorious ;  for  the  bishop  in 
this  agreement  surrendered  the  power  theretofore  exercised  by  him , 

128 


Chapter  V]  SCANDINAVIA  [§  396 

of  instituting,  by  his  delegate,  but  without  such  condition  prece- 
dent, a  proceeding  against  sucli  an  assailant  for  infraction  of  church 
rules;  this  prerogative  evidently  having  been  considered  an  ex- 
ception. In  the  Jydske  Code,  however,  this  canonical  prerogative 
was  later  restored,  in  disregard  of  the  pact,  while  the  right,  con- 
ferred by  the  latter,  to  summon  into  court  both  the  offender  and  the 
injured  party  if  they  had  made  a  reconciliation  outside  of  the 
bishop's  court,  was  retained.  In  the  Articles  of  Thord  Degn  and  in 
Erik's  Code  of  Sjselland  a  provision  appears,  imposing  a  fine  of 
three  marks  to  the  king  on  the  party  wounded  for  failing  to  pro- 
ceed with  his  cause,  and  further  authorizing  the  "  Fogede  "  (the 
royal  bailiff)  to  vindicate  the  right  of  the  crown  where  the  injured 
party  fails  to  enter  complaint.  A  party  robbed  who  failed  to  pur- 
sue his  action  before  the  twelve  true  men,  after  having  instituted 
it,  was  amenable  under  the  Jydske  Code  to  a  fine  of  three  marks  to 
the  king  and  the  accused.  Public  accusations  for  this  crime  seem 
to  have  been  as  rare  as  for  larceny.  Even  in  manslaughter  this 
seems  to  have  been  the  case,  notwithstanding  the  kin  of  the  de- 
ceased had  failed  to  proceed  with  their  cause ;  but  here,  also,  a 
larger  fine  for  the  king  became  due  where  reconciliation  was  made 
outside  of  court.  In  the  Jydske  Code  there  is  in  fact  nothing  indi- 
cating certainly  that  the  public  authority  was  to  institute  proceed- 
ings even  for  felonies  beyond  the  degree  expiable  by  fine  ("  Ub0de- 
maal  ")  ;  and  it  is  very  doubtful  whether  the  Code,  in  its 
provisions  for  the  infliction  of  punishments,  does  not  assume  either 
that  a  previous  private  complaint  was  made  or  that  the  offender 
w^as  apprehended  in  the  act  and  brought  to  the  "  Thing." 
This  Code,  which  is  more  harsh  than  Erik's  Code  of  Sjtelland  in 
its  punitive  measures,  would  seem  thus  not  to  authorize  public  and 
official  accusations  to  the  same  extent  as  the  Code  of  Sjjelland. 

Accessories.  — •  Where  several  persons  had  together  committed 
an  ofl'ense,  they  could  clear  themselves  with  a  single  fine  by  hold- 
ing together  in  declaring  that  they  had  been  "equally good  ",  where 
it  was  only  an  issue  whether  the  act  was  an  accident  ("  urn  the  wilia' 
samsen  wsere,  tha  b0t8e  ikky  msere  sen  ense  b0t8er  ").  Otherwise, 
the  general  rule  was  enforced  that  every  participant  in  the  act, 
including  mere  accessories,  should  pay  the  full  fine.  For  grave 
crimes  punishment  was  meted  out  even  to  a  companion  of  the 
wrongdoer,  who  harl  taken  no  part  ii:  the  commission  of  tiie  olVense 
("  in  comitatu  "  ;  "  i  fierth  oc  i  fylgi  "),  —  a  fine  of  three  marks 
to  the  private  complainant  and  a  like  amount  to  the  king.     This 

129 


§39?;]  THE   MIDDLE   AGES  [Part  I,  Title  H 

provision  was  inserted  in  the  proclamation  for  Skane  of  Canute  \'l, 
December  28,  1200,  for  cases  of  murder,  and  became  thereafter 
l)art  of  the  Code  of  that  province ;  and  a  simihir  ruh'  was  api)hed, 
under  tlie  Sjailland  Codes,  in  all  cases  too  grave  for  mere  fines  and 
in  all  "  forty-mark  suits."  The  reason  for  this  provision  was  un- 
doubtedly tlie  not  infrequent  practice  of  those  times  for  a  bandit  to 
sally  forth  with  a  large  retinue  of  his  kin  and  allies,  generally  armed, 
to  commit  the  plotted  deed  (especially  to  fulfil  a  feud  of  vengeance), 
when  the  mere  presence  of  his  companions  served  as  his  support. 
An  example  of  this  doctrine  of  punishing  an  accessory  before  the 
fact  is  presented  in  the  case  (referred  to  already)  of  one  person 
lending  another  a  weapon  for  the  purpose  of  murder ;  by  all  the 
provincial  Codes  he  was  amenable  to  a  fine  of  three  marks.  Coun- 
seling and  abetting  misdemeanors  was  penalized  only  exception- 
ally ;  Erik's  Code  of  Sjselland  mentions  only  the  taking  of  life,  when 
the  instigator  was  fined  nine  marks ;  but  the  Code  of  Skane  ex- 
acted this  penalty,  to  the  extent  of  three  marks,  when  any  one  by 
his  advice  brought  about  the  imprisonment  of  another  or  influenced 
a  magnate  to  do  violence  to  another's  property.  —  The  respon- 
sibility of  the  master  of  the  house  ("  Husbonde  ")  for  the  acts  of 
those  under  him  was  recognized.  For  misdeeds  done  by  his  serfs 
("  Traelle  ")  or  free  servants  by  his  direction,  and  in  the  case  of 
the  former,  by  his  suggestion,  he  was  adjudged  the  transgressor. 
Furthermore  Yaldemar's  Code  of  Sjselland  exempts  from  fine  one 
commanding  his  thrall,  or  free  follower,  to  assault  another,  where 
the  command  is  not  carried  out.  This  is  not  inconsistent  with  the 
Skane  rule,  holding  that  he  who  by  force  is  prevented  from  strik- 
ing another  is  as  guilty  as  if  he  had  carried  out  his  intent ;  nor  with 
that  of  the  Jydske  Code,  which  hkewise  condemns  an  assailant 
whose  blow  misses  and  reaches  only  his  victim's  garb  or  horse. 
The  mere  attempt  w'as,  at  this  stage  of  the  law,  not  punished, 
unless  it  had  got  as  far  as  an  actual  attack,  as  in  the  last-mentioned 
cases.  This  doctrine  on  the  whole  represents  the  general  tenor 
of  the  various  provisions  on  this  point  in  medieval  Germanic  and 
Northern  law. 

Elements  of  the  Money  Forfeitures.  —  The  essential  distinction 
made  between  private  and  public  fines,  the  former  being  regarded 
as  restitution  and  damages  for  the  subjective  injuries  of  rights, 
and  the  latter  as  reparation  for  the  objective  infraction  of  justice, 
is  pointed  out  by  Archbishop  Anders  Suneson.  He  also  clearly 
separates  the  satisfaction  obtained  by  the  oft'ended  party  for  the 

130 


Chapter  V]  SCANDINAVIA  [§  396 

personal  affront,  with  the  indeterminate  compensation  incident 
thereto,  from  the  reparation  for  the  actual  material  loss  sustained, 
both  of  which  elements  enter  into  the  private  "  B0de  "  ("  duplicata 
quadraginta  marcarum  satisfactione,  una  regi  pro  violatione 
iusticie  alteraque  pro  irrogatione  iniurie  ").  This  difference  is 
also  evidenced  throughout  the  Codes,  so  that  the  term  "  at  b0tce  " 
(to  atone ;  to  forfeit  money  as  punishment)  implies  paying  the 
debt  for  the  dishonored  right,  as  opposed  to  the  phrase  "  at  gja?Ide  " 
(to  give  equivalent),  signifying  a  making  good  of  the  property 
loss.  Both  terms,  however,  are  used  for  each  conception,  whence 
doubt  often  arises  as  to  what  is  included  in  the  action. 

In  determining  the  amount  of  the  fine,  the  basis  of  calculation 
was  one  silver  mark  (eight  ounces  of  silver),  which  was  of  equal 
value  to  eight  "  0re,"  a  coin  exchangeable  for  three  "  ßrtuger," 
and  the  latter  in  turn  being  ten  "  Penninge  "  (money;  pennies). 
In  course  of  time,  however,  as  the  weight  of  minted  coins  was  de- 
creased, this  relative  value  changed,  and  in  the  period  of  the  pro- 
vincial Codes  one  silver  mark  equaled  three  marks  in  pennies. 
Unless  the  term  "  silver  mark  "  was  expressly  used  in  provisions 
as  to  fines,  one  mark  signified  the  minor  coin  standard.  Some 
exceptions  to  this  are  noted ;  but  it  would  appear  that  the  king's 
fine  was  not  affected  by  fluctuations  in  the  relati\'e  values  of  coins, 
except  by  the  king's  grace.  The  more  ancient  practice  of  making 
restitution  by  goods  instead  of  money,  such  as  cloth  or  cattle,  re- 
garding which  the  earliest  legal  sources  of  Norway  and  Iceland 
contain  extensive  regulations,  was  still  largely  retained.  Where 
the  amount  of  physical  damages  sustained  was  easily  ascertain- 
able, the  legal  private  fine  could  be  demanded  aside  from  such 
compensation ;  but  where  the  loss  was  irreparable,  as  in  cases  of 
injury  to  limb  or  affront  to  personal  honor,  the  pecuniary  for- 
feiture included  also  satisfaction  for  this  element,  and  the  amount 
consequently  varied  considerably  according  to  the  nature  and  ex- 
tent of  the  wrong.  Instances  appear  of  fines  from  one  "  Ore  " 
to  six  marks,  and  by  cumulative  fines  for  several  injuries 
there  was  sometimes  paid  a  sum  of  five  siher  marks  or  fifteen 
penny  marks.  This  latter  combination,  however,  according  to 
Suneson,  was  made  only  where  charges  of  manslaughter  and 
robbery  were  joined,  or  several  injuries  to  limbs ;  the  complain- 
ant in  other  cases  having  to  choose  a  particular  charge,  thereby 
excluding  claim  for  other  fines,  yet  still  being  entitled  to  be  reim- 
bursed for  his  actual  loss  sustained. 

131 


§  396]  THE  MIDDLE  AGES  [Part  I,  Title  II 

Forty-Mark  and  Three-Mark  Causes.  —  Distinguished  from 
these  jKirels-  prixate  mulcts,  there  are  found  in  all  the  provincial 
Codes  two  fines,  of  forty  and  of  three  marks  respectively,  which 
were  more  in  the  nature  of  punishment,  ofi'enses  being  thus 
divided  into  "  forty-mark  "  and  "  three-mark  "  causes. 

The  first  class  included  breaches  of  a  special  peace,  that  is,  mis- 
demeanors which  were  not  of  the  degree  of  felonies  beyond  expia- 
tion by  pecuniary  forfeitures.  Among  these  are  mentioned  the 
following  in  Erik's  Code  of  Sjtelland,  (whose  provisions  are  in  part 
similar  to  those  of  the  other  Codes  of  the  period) :  (1)  manslaughter, 
wounds  and  other  mayhem,  in  fulfilling  a  feud  of  vengeance  on  one 
to  whom  the  assailant  had  made  a  guaranty  of  peace  and  immunity, 
or  who  had  promised  to  pay  fines  and  damages ;  the  acceptance 
of  such  a  promise  and  the  reconcihation  thereby  presumed  operat- 
ing as  an  implied  warrant  of  safety  ;  (2)  breaches  of  the  peace  of  the 
church  and  eyre  or  "  Thing  "  by  wounds  or  blows,  and  murder 
on  the  road  to  the  assizes ;  the  Jydske  Code,  however,  declaring 
the  latter  crime,  as  well  as  murder  committed  in  the  presence  of 
the  "  Thing,"  to  be  too  grave  for  pecuniary  amends ;  (3)  breach 
of  the  peace  of  the  market  by  manslaughter,  wounds,  or  blows; 

(4)  breach  of  the  peace  of  the  home  and  hearth  by  violence  and 
ravage,  including,  in  this  class,  similar  havoc  wrought  in  any  one's 
ship,  and  the  taking  of  a  person's  life  while  in  his  shore  booth; 

(5)  imprisonment,  kidnapping,  and  rape ;  the  latter,  however, 
being  declared  by  the  Jydske  Code  too  grave  an  offense  for  ransom 
by  fine ;  and  (6)  willful  arson  of  the  house,  mill,  or  other  struc- 
ture of  another,  except  where  attended  with  loss  of  life.  The 
Jydske  and  Skane  Codes  also  assign  to  this  degree  of  felonies  a 
breach  of  the  king's  peace  by  wounding  or  maltreating  another 
while  the  king  was  in  the  same  "  Herred,"  or  district,  according  to 
the  former  Code,  or  in  the  same  province,  according  to  the  latter. 
Robbery  of  corpses  was  also  included  in  the  former  Code,  while  the 
latter  provided  a  penalty  of  three  marks,  and  Erik's  Law  of  Sjsel- 
land  one  of  nine  marks  for  this  offense.  These  forty-mark  mulcts 
were  regarded  as  an  expiation  for  the  breach  of  the  public  peace, 
and  the  offender  must  also  pay  the  private  damages  for  aft'ronts  and 
losses,  varying  according  to  the  nature  of  the  act ;  this  principle 
also  being  applied  to  his  companions,  who  were  subject  to  the  pub- 
lic fine  of  three  marks.  There  was  furthermore  a  general  rule 
that  where  the  injured  party  was  entitled  to  these  forty  and  three 
marks,  similar  amounts  were  also  to  be  forfeited  to  the  king  by  the 

132 


Chapter  V]  SCANDINAVIA  [§  306 

chief  aggressor  and  his  accessories.  All  forty-mark  prosecutions 
were  disposed  of  at  the  "  Land-thing  ",  which  referred  them  for 
investigation  to  a  body  of  its  members,  resembling  a  jury,  termed 
in  Sjaelland  "  Xsevninger  "  and  in  Jylland  "  Sandemsend  "  (true 
men). 

The  only  public  fines  accruing  to  the  "  king's  right,"  other  than 
the  above  forty-mark  cases,  were  the  three-mark  penalties,  except 
cases  of  self-redress,  where  the  amounts  varied.  These  three-mark 
fines,  which  are  frequently  inserted  in  the  Gragas  and  the  Codes 
of  Norway  (the  latter  terming  them  "  full  right  "),  are  imposed 
not  only  for  crimes  but  also  in  certain  civil  cases.  A  peculiar 
feature  is  that  they  were  at  times  both  a  private  and  a  public  pen- 
alty and  in  other  cases  only  one  of  the  two.  In  the  first  instance, 
the  payment  was  generally  three  marks  to  the  complainant  and  a 
similar  amount  to  the  royal  exchequer ;  the  latter  fine  always  be- 
ing fixed  at  such  amount,  while  the  former  occasionally  varied 
between  smaller  and  larger  amounts.  The  double  penalty  was  in- 
flicted chiefly  in  the  following  cases:  (1)  robbery  and  trespass 
(with  some  exceptions) ;  (2)  accessories,  presumed  from  compan- 
ionship (already  explained) ;  (3)  wounds ;  the  payment  to  the  in- 
jured party  here  varying  from  six  marks  (when  the  weapon  entered 
the  body  or  limb  or  penetrated  it  completely),  to  three  marks  (for 
lesser  injuries).  Under  Canute  VI's  Ordinance  for  Skäne  and  the 
Skane  Code,  one  guilty  of  inflicting  wounds  incurred  always  a  royal 
penalty  of  three  marks;  whereas  in  Sjaelland  the  public  fine  was 
imposed  only  where  the  wounds  were  so  serious  as  to  necessitate  the 
calling  of  the  surgeon.  The  Jydske  Code,  while  silent  on  this  sub- 
ject, declares  that  for  wounds  inflicted  by  chance  no  fines  are  paya- 
ble to  the  king.  (4)  For  the  slaying  of  cattle,  there  was  a  double 
fine  of  three  marks,  one  for  the  king  and  the  other  for  the  owner. 
(5)  In  Sja-lland  and  Jylland,  for  theft  of  articles  worth  less  than  half 
a  mark,  where  the  thief  was  caught  in  the  act  or  with  the  stolen 
goods  in  his  possession,  three  marks  went  to  the  king.  (())  In  all 
provincial  Codes  there  were  several  provisions  for  this  double  fine 
for  "  impeding  right"  (contempt  of  court),  — where  a  person  le- 
gally summoned  absented  himself  without  sufficient  cause  from  the 
"  Thing",  or  in  other  mode  displayed  arrogance  or  refused  to  fulfll 
a  duty  imposed  by  law ;  where  a  person  removed  timber  which  he 
had  cut  on  another's  premises,  after  prohibition  by  the  owner ; 
where  an  oath-bound  promise  was  not  performed.  So,  too,  the 
grantor  of  land,  unable  to  deliver  good  title,  in  Jylland  had  to 

133 


§  396]  THE  MIDDLE  AGES  [Pakt  I,  Title  II 

])ay  tlic  double  three-mark  fine,  l)ut  in  other  districts  only  to  the 
buyer ;  on  the  other  hand  this  fine  was  to  be  claimed  by  the  king 
alone  when  the  "  old  men  "  (witnesses  to  title j  would  not  make 
oath. 

Tn  contrast  to  the  finable  misdeeds  stand  those  heinous  crimes, 
which  could  not  be  atoned  for  by  money,  but  invoh^ed  outlawry 
or  some  other  public  punishment.  These  are  termed  in  the  pro- 
vincial Codes,  both  of  Sweden  and  of  Norway,  unfinable  cases 
("  Orb0t{emal  ").  Being  generally  heinous  breaches  of  peace  and 
faith,  or  vilely  treacherous  in  their  manner  of  commission,  they  are 
termed  "  infamous  deeds  "  ("  Nithingsvaerk  ").  On  the  question 
which  transgressions  were  to  be  classed  of  this  degree,  there  was 
more  or  less  conflict  between  the  various  Codes ;  and  this  fact  is 
certainly  responsible  largely  for  the  gradual  change  in  the  penal 
system. 

Outlawry. — ^  The  term  "peace",  in  legal  phraseology,  like  the 
term  "  right  ",  has  both  a  subjective  and  an  objective  meaning. 
It  signifies  in  part  the  position  of  the  individual,  as  entitled  to  the 
recognition  by  others  of  certain  rights,  w^hich  society  has  under- 
taken to  protect  against  unjustifiable  infractions,  and  in  part  the 
general  public  system  of  law  and  order.  Every  violation  of  a  right 
thus  imports  theoretically  a  breach  of  the  peace  in  this  double 
sense.  But  in  a  less  developed  notion  were  included  in  this 
double  sense  only  gross  violations  of  right  and  such  acts  as  involved 
the  breach  of  some  specially  important  class  of  peace.  The  of- 
fender who  by  his  act  had  forfeited  that  status  in  society  which 
entitled  him  to  its  protection  was  declared  "  without  peace  " 
("  fredl0s  ",  "  utlagar  ").  The  basic  principle  therefore  in  the 
early  Northern  legal  system  was  that  whoever  would  not  recognize 
the  rights  of  others,  should  not  himself  enjoy  any.  So  long  as  self- 
redress  was  regarded  as  permissible  for  the  injured  party,  the  of- 
fender's "  peacelessness  ",  at  least  in  relation  to  the  injured  party, 
ensued  as  an  immediate  consequence  of  the  misdeed,  without  any 
necessity  for  bringing  the  cause  before  the  "  Thing  "  or  obtaining 
judgment. 

But  the  gradual  limitation  and  restraints  imposed  on  private 
vengeance,  as  already  described,  show  that  quite  early  the  rule 
came  into  vogue  that  outlawry  should  be  incurred  only  upon  a 
decree  of  the  men  convoked  in  the  "  Thing."  Furthermore,  the 
outlawed  oft'ender  was  allowed  a  certain  period  for  escaping  from 
the  revenge  thus  sanctioned ;    being  immune  from  attack  for  the 

134 


Chapter  V]  SCANDINAVIA  [§  396 

entire  day  when  the  decree  was  promulgated  and  the  succeeding 
night,  in  Skane  and  Sj;ielland,  for  a  (hiy  and  a  month  in  Jylland, 
where  the  period  was  later  shortened  to  three  days  and  nights. 
At  the  expiration  of  this  respite,  his  deprivation  of  the  peace  be- 
came effective  with  all  its  strictness ;  he  was  in  total  outlawry. 
While  a  price  was  not  placed  on  his  head  (as  in  the  Icelandic  Grä- 
gas) ,  he  was  exposed  to  the  feud  of  his  opponent  or  the  blood  ven- 
geance of  the  latter's  kin ;  and  according  to  the  general  rule  (as 
Archbishop  Suneson  records  it)  his  life  could  be  taken  by  any  one. 
He  was  further  ostracized  from  all  intercourse  with  the  members 
of  the  community  ;  every  one  was  prohibited,  under  the  three-mark 
penalty,  from  harboring  him  or  in  any  way  dealing  with  him ; 
even  the  monastery  sanctuary  was  barred  to  him  as  an  asylum.  His 
possessions  escheated  to  the  king,  after  his  victim  or  the  heirs 
and  relatives  of  the  latter  had  received  satisfaction ;  and  it  would 
appear,  from  the  ancient  Danish  sources,  as  well  as  the  earlier 
Swedish  and  Norwegian  codes  and  the  municipal  Ordinance  of 
Slesvig,  that  this  forfeiture  for  what  were  classed  as  "  heinous 
crimes  "  extended  both  to  real  and  personal  property.  The  later 
provincial  Codes,  however,  limited  this  forfeiture  to  personalty 
only,  on  the  principle  that  none  can  forfeit  his  landetl  estate, 
or  more  than  his  personal  effects ;  the  only  exception  (named  by 
Anders  Suneson  and  the  Code  of  Sjnelland)  being  the  crime  of 
treason,  and  this  provision  was  adopted  in  the  Ordinance  of  P>ik 
Glipping  for  Xyborg,  in  1282,  and  in  King  Oluf's  Charter. 

On  comparing  the  later  provincial  Codes  with  the  earlier  Ordi- 
nances of  Canute  VI  and  ^'aldemar  II  for  Skane,  distinctions  and 
changes  will  be  noted,  in  that  certain  offenses,  which  had  pre- 
viously been  adjudged  causes  of  outlawry,  might  now  be  cleared 
by  fines  (outlawry  resulting  only  when  these  were  not  paid), 
while  other  crimes,  once  subject  to  fines  only,  were  given  heavier 
punishment  than  fines.  The  following  is  a  list  of  the  later  out- 
lawry crimes,  according  to  Suneson:  (1)  murder  or  wounding  in 
vengeance  of  one  who  already  had  paid  fines,  or  who  had  bci-n 
acquitted  ;  (2)  murder  at  the  "  Thing  "  or  (according  to  the  Code 
of  Jylland),  on  the  road  to  the  "Thing";  (3)  murder  in  the 
cluirch  or  the  churchyard  ;  (4)  murder  combined  with  ravage  or 
breach  of  hearth  and  home ;  the  Ordinance  of  Canute  VI  and  the 
Code  of  Skane,  however,  classing  this  crime  as  finable,  and  Sune- 
son limiting  outlawry  to  murder  committed  by  a  guest  on  his  host, 
or  vice  versa,  —  here  altering  the  earlier  rule;    (.3)   nnirder  dur- 

135 


§  39b]  THE  MIDDLE   AGES  [Part  I,  Title  II 

iiifj  the  presence  of  the  king  in  the  same  province,  in  the  Onli- 
nancc  of  Valdemar  II  and  of  Skänc,  tlio  Jylland  law  limitinf?  the 
territory  to  the  same  "  Ilerrefl  ",  and  the  ('ode  of  SjteHand  being 
silent  on  the  subject ;  (6)  for  kidnapping  the  betrothed,  wife, 
mother,  sister,  or  daughter  of  another,  there  is  a  contradiction 
in  Suneson;  in  one  i)lace  he  classes  this  crime  as  subject  to  (jut- 
lawry,  and  in  another  place  states  that  rape  is  a  forty-mark  of- 
fense (as  also  appears  in  the  Skane,  Sjselland,  and  the  old  Sles\'ig 
town  laws) ;  from  a  fragment  of  an  earlier  code  of  Skane,  and  the 
Code  of  Jylland,  terming  such  crimes  "  heinous  ",  these  changes 
would  appear  to  have  been  made  during  the  reign  of  Valdemar  II ; 
(7)  arson  likewise  is  declared  by  Suneson  to  be  punishable  by  out- 
lawry, but  in  another  place  (agreeing  with  the  Code  of  Skane),  by 
death,  the  latter  being  inflicted  in  Sj?elland  and  Jylland  only  where 
loss  of  life  resulted  from  arson  and  the  miscreant  was  caught  in  the 
act,  —  otherwise  he  could  become  a  fugitive,  losing  the  "  peace  ", 
while  proved  arson  alone  was  a  forty-mark  case  ;  (8)  failure  to  pay 
fines  for  manslaughter  rendered  the  defendant  an  outlaw  under  the 
ordinances  of  Skane  and  Valdemar  II,  as  well  as  in  Suneson's  ac- 
count; Valdemar's  Code  of  Sjpelland  also  provides  that  the  man- 
slaughterer,  after  having  bought  his  peace  from  the  king,  should 
tender  damages  to  the  relatives  of  the  deceased ;  if  the  latter  did 
not  venture  to  insist  that  the  crime  was  unfinable,  he  should  be 
notified  of  the  terms  of  his  peace,  outlawry  attaching  only  upon  his 
failure  to  pay  his  fines ;  Erik's  Code  for  the  same  province  also 
imposed  outlawry  for  failure  to  pay  fines  for  manslaughter  (though 
manslaughter  was  not  in  itself  subject  to  outlawry)  or  for  other 
forty-mark  crimes. 

The  distinction  is  here  to  be  noted  between  two  kinds  of  peace- 
purchase,  —  the  one  affording  the  offender  a  means  of  escaping 
outlawry  in  the  first  instance,  and  the  other  restoring  him  into 
peace  after  the  latter  had  been  lost,  this  being  possible  only  by  the 
consent  of  the  king  and  of  the  offended  party  or  his  kin.  Thus,  the 
Jydske  Code  provided  that  where  the  murderer  promptly  tendered 
the  lawful  fines,  the  cause  would  not  go  to  the  "  true  men  "  (or 
jurors  at  the  "  Thing  ") ;  while  if  no  tender  was  made,  he  was 
either  outlawed  or  ordered  to  pay  fines,  according  as  the  court 
found  that  he  had  taken  the  life  of  an  offenseless  man  or  had  acted 
in  self-defense  or  in  justifiable  feud  ;  but  if  he  became  "  peaceless  " 
or  was  found  by  the  verdict  to  merit  outlawry,  he  could  regain  his 
peace  only  by  the  consent  of  the  king  and  the  injured  party. 

136 


Chapter  V]  SCANDINAVIA  [§  39& 

\Yhere  the  three-mark  penalty  (imposed  in  various  civil  and  mis- 
demeanor cases  for  contempt  and  disobedience  of  the  legal  author- 
ities) was  not  paid,  outlawry  was  also  applicable ;  but  gradually 
for  this  default  there  came  into  vogue  a  minor  degree  of  outlawry. 
This  is  found  in  the  Code  of  Skäne  for  theft  only,  where  the  de- 
fendant has  first  been  outlawed  at  the  "  Thing  of  the  Herred  " 
("  Mad})and  ")  ;  he  was  excluded  from  all  intercourse  with  the 
inhabitants  of  the  "  Hundred",  and  later  was  declared  "  without 
peace  "  at  the  "  Thing  of  the  Land  "  by  reason  of  defaulting 
])efore  that  assembly.  This  case  is  likewise  dealt  with  in  \'alde- 
mar's  Code  of  Sjselland,  the  expression  here  used  being  "  loss 
of  personal  security  "  ("  ^Manhselg  ") ;  the  same  sentence  also 
being  imposed  upon  one  charged  with  assault  or  robbery  who  fails 
to  clear  himself  in  some  mode ;  there  is  no  mention,  however,  of 
proceedings  at  the  "  Land-thing."  A  similar  "  loss  of  personal 
security  "  is  provided  for  in  Erik's  Code  of  Sjielland  for  those 
guilty  of  assault,  who,  when  persisting  in  contempt,  are  finally  de- 
clared outlaws  by  the  "  Land-thing."  So  the  Jydske  Code  imposes 
a  like  penalty  where  amends  are  not  made  for  wounds  or  claims 
for  wages  not  satisfied.  This  judgment  was  thus  evidently  not  in- 
tended as  a  punishment  for  the  crime,  but  for  the  failure  to  submit 
to  authority  and  as  a  pressure  to  enforce  payment  of  the  fines 
which  would  absolve  the  fugitive  from  the  judgment.  The  out- 
lawry had  effect  only  within  the  jurisdiction  of  the  "  Thing  ", 
whether  "  Herred  "  or  "  Land  ",  l)ut  the  extent  of  the  loss  of  se- 
curity differed,  in  that  under  Valdemar's  Code  of  Sjtelland  a  general 
loss  of  legal  protection  seems  to  have  resulted,  whereas  Erik's  Code 
for  that  province  and  the  Jydske  Code  limited  the  right  of  injuring 
him  to  the  accuser  only,  who  could  strike  and  wound  him,  yet  not 
deprive  him  of  life  or  limb  nor  attack  him  in  a  sanctuary. 

Other  Public  Punishments.  —  Thus,  in  the  provincial  Codes  the 
general  rule  was  that  offenses  could  be  atoned  for  by  fines  and 
damages,  but  that  where  these  were  not  forthcoming,  or  where  the 
crime  itself  was  so  heinous  as  not  to  be  atonable  by  fine,  outlawry 
ensued.  The  outlawed  person,  in  either  case,  if  he  neither  availed 
himself  of  the  legal  period  of  flight,  nor  purchased  his  peace,  became 
completely  "  rightless."  He  might  be  slain  by  any  one  with 
impunity.  The  king  could  have  him  chastised  and  corrected, 
as  appears  in  various  laws.  Until  a  free  man  had  thus  been  out- 
lawed, however,  the  public  authority  had  no  power  to  inflict 
punisliment  on  him. 

137 


§  :]f)li]  THE   MIDDLE   AGES  [Part  I,  Titlk  II 

The  only  exception  to  tliis  rule  in  the  provincial  Codes  was  for 
theft.  This  offense  was  deemed  in  the  earlier  ages  the  vilest  of 
crimes,  and  the  thief  did  not  share  the  privileges  preserved  for  those 
accused  of  other  crimes  previous  to  outlawry.  Some  of  the  punish- 
ments inflicted  for  theft  were  unknown  for  other  ofYenses,  e.g. 
serfdom  and  maiming.  In  determining  the  punishment  the 
judges  must  have  regard  to  the  value  of  the  stolen  goods,  and  to 
whether  or  not  the  defendant  had  been  caught  in  the  act  or  the 
missing  property  been  found  in  his  possession.  The  boundary 
between  grand  and  petty  larceny  in  all  the  Danish  provinces  was 
three  penny-marks ;  capital  punishment  was  inflicted  only  where 
the  value  of  the  goods  stolen  was  not  less  than  this  amount  and 
where  in  addition  the  thief  had  been  caught  in  the  act  and  brought 
to  the  "  Thing."  By  the  Code  of  Skane,  a  thief  might  be 
hung ;  but  the  penalty  for  petty  larceny  varied  from  the  whipping 
post  to  loss  of  limb  or  serfdom  to  the  king.  For  church  theft,  or 
robbery  combined  with  murder,  he  was  broken  on  the  wheel,  or 
(according  to  Suneson)  stoned  or  burned  to  death.  To  these  pro- 
visions Valdemar's  Code  of  Sjfelland  adds  that  the  "  men  of  the 
Thing  "  shall  decide  upon  the  nature  of  the  punishment  for  grand 
larceny,  with  the  approval  of  the  complainant.  The  Jydske  Code 
names  capital  punishment  as  the  regular  penalty  for  grand  larceny 
where  the  thief  has  been  caught  in  the  act,  or  been  found  with  the 
stolen  goods  in  his  possession,  or  confessed  the  crime.  It  also  con- 
tains a  notable  reference  to  the  injured  person's  right  (formerly  con- 
ceded, and  still  retained  in  the  town  Code  of  Slesvig)  to  slay  the 
thief  when  caught  in  the  act ;  this  being  now  a  prohibited  form  of 
self-vengeance,  but  the  king's  bailiff  having  the  power  to  hang 
him  without  hearing  and  judgment.  For  petty  larceny,  the  thief 
was  branded  with  the  thief-mark,  and  for  a  second  offense  he  was 
hung,  regardless  of  the  value  of  the  stolen  goods. 

The  crime  of  arson  carried  the  death  penalty  in  all  the  provinces. 
By  the  Code  of  Skane,  whoever  by  the  ordeal  of  hot  iron  was  found 
guilty  of  deliberate  arson  and  was  arrested  after  the  lapse  of  the 
period  allowed  for  his  escape,  was  to  be  hung.  According  to  Su- 
neson, the  death  penalty  applied  where  arson  was  committed  for 
the  purpose  of  theft ;  while,  by  Erik's  Code  of  Sjaelland  and  by 
that  of  Jylland,  this  was  done  only  where  arson  was  combined  with 
murder  and  the  miscreant  caught  in  the  act ;  here  the  mode  pre- 
scribed by  the  Sjselland  Code  was  specifically  burning  at  the  stake 
or  breaking  on  the  wheel  or  casting  down  from  a  clift'.      Where 

138 


Chapter  V]  SCANDINAVIA  [§  39c 

not  caught  in  the  act,  but  convicted  })y  law,  he  was  accorded  the 
customary  period  of  escape ;  at  its  expiration  the  same  penalties 
applied,  unless  he  was  pardoned  by  the  king's  grace.  —  Capital 
punishment  is  also  decreed  by  the  Jydske  Code  for  counterfeiting 
and  robbery. 

Wherever  life  was  forfeited,  the  mo\abIe  property  of  the  culprit, 
remaining  after  satisfaction  made  to  the  victim,  escheated  to  the 
king. 

§  39c.  Penal  Legislation  A.D.  13001 500.  —  The  foregoing  ac- 
count of  the  provincial  Codes  shows  that  the  penal  law  was  still 
generally  considered  as  having  chiefly  a  private  character,  both 
as  to  the  specific  crimes,  the  penalties  imposed,  and  the  mode 
of  prosecution.  For  most  offenses  amends  could  be  made  by  fines 
to  the  injured  party  and  to  the  ruler.  Were  these  not  forthcoming, 
the  accused  could  be  forced  into  outlawry  ;  outlawry,  furthermore, 
ensued  directly  as  the  penalty  for  the  graver  crimes ;  capital 
punishment  was  inflicted  only  for  a  few  offenses  deemed  especially 
treacherous  and  ^'ile.  The  right  of  complaint  for  wrongs  ame- 
nable to  fine  inhered  primarily  in  the  offended  party,  public 
prosecution  being  here  only  subsidiary,  and  usually  only  where 
the  crime  was  notorious ;  but  for  crimes  not  atonable  by 
fine,  especially  when  notorious,  public  prosecution  was  the 
regular  mode. 

In  the  sources  and  authorities  of  the  succeeding  centuries  up  to 
the  1500  s,  no  general  or  radical  alterations  in  this  system  are 
apparent,  other  than  that  the  punishments  for  certain  crimes  were 
made  more  severe,  and  that  certain  of  the  earlier  provisions  were 
not  always  enforced.  Thus  the  older  rules  are  repeated  almost 
without  change  in  the  Ordinances  of  Erik  GIip])ing  of  12S2,  12S3, 
and  1284.  So,  too,  is  reenacted  in  the  Ordinances  for  \'ording- 
borg  and  Xyborg,  of  1282,  the  rule  of  the  provincial  Codes  appli- 
cable to  theft,  that  no  one  shall  be  imi)ris()iie(l  unless  caught  in  the 
act  or  legally  convicted  of  a  crime  punisha])le  by  forfeiture  of  life 
or  limb ;  to  this  provision  the  Vording  law  adds  murder,  rape,  or 
mayhem  done  in  a  village  where  tlie  king  is  present ;  and  the 
Nyborg  law  adds  that  one  not  caught  in  the  act.  nor  proved 
guilty  in  other  manner,  shall  have  the  legal  time  for  making  his 
escape,  and  that  no  })unishnu>nts  shall  l)e  inflicted  other  than 
such  as  are  described  in  the  law  nor  unless  the  accused  is  legally 
proved  guilty.  These  regulations  were  almost  literally  repeated 
in  the  later  Charters  ("  Haandfa'stninger  "). 

139 


§  39c]  THE    MIDDLE    AGES  [Pa FIT  T,  TrTr,E  II 

Was  the  feud-revenge  on  kindred  still  countenanced  ?  The 
TIclsingborg  Ordinance  of  12813,  after  reenacting  the  provisions  of 
\'aldomar's  Code  for  Skäne,  that  the  relatives  of  the  murderer 
are  not  in  duty  bound  to  contribute  to  the  "  man-fine  ",  unless  he 
had  become  an  outlawed  fugitive,  expressly  prohibits  the  victim's 
kin  from  taking  vengeance  on  the  guilty  one's  kin  while  he  was 
yet  alive,  classing  such  revenge  as  unprovoked  murder.  A  similar 
rule  is  also  laid  down  in  the  Articles  of  Thord  Degn,  which  also 
penalize  violent  acts  of  vengeance  with  a  royal  fine  of  forty  marks 
and  outlawry ;  such  self-redress  being  declared  to  be  a  contempt 
of  the  king's  judicial  authority.  This  Ordinance  of  Helsingborg, 
in  1283,  also  accords  with  the  earlier  Provincial  Codes  in  penalizing 
acts  of  violence  ("  Hservaerk  ")  with  fines  of  forty  marks,  and  mur- 
der in  church  or  in  the  home  of  the  slain  with  outlawry.  The 
Ordinances  of  1284,  however,  are  more  severe,  decreeing  outlawry 
also  for  mayhem  inflicted  at  such  places,  also  applying  this  penalty 
to  the  companions  of  the  wrongdoer,  and  including  such  offenses 
when  done  against  a  guest  in  the  house  of  a  third  party.  The 
Jydske  Code  provides  death  for  such  crimes,  where  the  ofi'ender 
is  caught  in  the  act ;  and  it  adds  an  express  provision  for  public 
prosecution  in  such  cases,  this  being  prescribed  by  the  Articles  of 
Thord  Degn  only  where  a  fine  was  due  to  the  king.  These  ordi- 
nances also  reproduced  the  provision  of  the  provincial  Codes  that 
one  sentenced  to  pay  fines  for  a  grave  offense  w^ho  failed  wdthin  the 
time  allowed  to  render  satisfaction  or  produce  a  bondsman  should 
be  outlawed. 

Market-Town  Laws.  —  The  "  peace  of  the  village  "  is  referred 
to  as  early  as  the  Jydske  Code.  A  crime  committed  within 
the  boundaries  of  the  village  was  subject  to  an  additional  and 
special  fine ;  so  that  murder  or  injury  to  limb  involved  a  penalty 
of  forty  marks,  —  the  amount  in  some  cases  going  to  the  village 
exclusively,  in  addition  to  that  due  the  king,  and  in  other  cases 
being  divided  between  the  local  and  the  general  government.  In 
the  "INIarket  Towns  "  ("  Kj0bstaederne  "),  the  claims  of  the  of- 
fended party  were  generally  satisfied  first,  before  the  public  fines 
were  exacted;  one  exception  is  found,  however,  in  the  general 
Town  Code  of  Queen  INIargaret  (1294),  in  which  the  royal  claim 
came  first,  that  of  the  offended  party  next,  and  then  the  claim 
of  the  town.  That  these  Town  Ordinances  contemplated  general 
public  indictments  is  indicated  by  various  passages,  —  as  where 
it  is  said  that  public  prosecutions  are  not  proper  for  acts  of  chance 

140 


Chapter  V]  SCANDINAVIA  [§  39c 

or  accident  or  in  self-defense,  nor  during  "  holy  time  " ;  that  they 
shall  be  made  at  the  village  "  Thing  ";  and  also  that  the  king's 
officer  shall  not  be  limited  to  notorious  crimes  in  filing  charges. 
Other  provisions  aimed  at  preserving  the  peace  of  the  village, 
preventing  offenses,  and  insuring  the  punishment  of  offenders. 
Such  are  the  oft  recurring  rules  that  all  burghers  are  in 
duty  bound  to  come  to  the  rescue  of  one  attacked,  and  to 
apprehend  a  fugitive  offender  and  deliver  him  to  the  bailiff;  the 
appreheufler  being  entitled  to  share  in  the  fine.  Carrying 
weapons  in  public  places  was  likewise  prohibited.  Fugitive 
offenders  were  to  be  listed,  and  their  names  were  later  announced 
yearly  at  the  "  Thing." 

Besides  the  general  "  peace  of  the  village",  the  city  and  provin- 
cial Codes  also  name  a  "  peace  of  the  market  ",  the  day  and  hour 
for  holding  the  market  being  specified ;  and  in  the  town  Code  of 
Kopenhagen  (1294)  the  king's  peace  is  specially  mentioned. 
Outlawry  is  the  penalty  for  certain  crimes  ;  for  failure  to  pay  fines 
and  damages,  outlawry  could  be  inflicted,  as  also  imprisonment 
or  loss  of  life  or  limb.  In  these  town  codes  and  charters  (a.D. 
1294,  1485,  1507,  etc.)  it  was  furthermore  expressly  stated  that 
outlawry  there  inflicted  was  effective  throughout  the  realm,  and 
vice  versa ;  that  the  outlaw  could  regain  his  peace  only  by  making 
amends  to  all  concerned,  and  should  forfeit  his  life  otherwise  on 
returning.  In  the  earlier  town  Codes  of  Kopenhagen  (dating 
from  the  time  when  the  city  was  under  the  bishop's  rule),  life- 
imprisonment  was  provided  for  several  crimes  which  in  later  laws 
entailed  death  in  that  town  (and  in  other  towns  at  an  earlier 
date) . 

The  increasing  severity  of  punishment  in  the  later  town  Codes 
is  especially  noticeable  in  the  general  Town  Code  of  Queen  Mar- 
garet ;  but  there  is  considerable  variance  in  this  respect.  The 
earlier  town  Law  of  Skane  allowed  manslaughter  to  be  atoned 
with  fines,  while  in  the  charters  granted  to  several  market  towns 
in  Skane  by  Valdemar  Atterdag  (a.D.  13G1,  1415)  outlawry  was 
imposed.  Manslaughter,  in  the  town  Code  of  Roskilde  (a.D.  12()S), 
was  fined,  the  amount  varying  according  to  whether  the  offender 
was  a  burgher  or  a  stranger ;  and  the  Kopenhagen  Code  of  1 294 
imposed  imprisonment  for  life ;  while  that  of  Queen  Margaret 
(1387-1412)  prescribed  capital  punishment  for  every  murder; 
as  also  the  later  Kopenhagen  Code  and  the  general  Town  Codv  of 
King  Hans  (1481-1513). 

141 


§  39c/]  THE    MIDDLE    AGES  [Part  I,  TiTLE  II 

B.  Switzerland  ^ 

§  39r/.  The  Common  Law  of  the  Later  Middle  Ages  (Peace; 
Pledged  and  Commanded  Peace;  Crimes  ;  i  Penalties).  —  In  the 
Germanic  districts  which  now  form  Switzcrhuid,  there  were  many 
local  variances  of  detail.  But  the  general  features  of  the  common 
law  w^ere  substantially  the  same  in  all  the  cantons,  even  in  those 
using  what  is  now  the  French  language.  The  South  German  law- 
book, the  "Schwabenspiegel ",  did  not  possess  any  general  authority, 
nor  was  it  even  a  general  model.  Each  canton  had  some  special  en- 
actments of  its  own.  The  Bern  "  Gerichtssatzung  "  (Judiciary 
Act)  of  1593  is  the  most  representative  source  for  the  body  of  later 
medieval  tradition.  The  old  Swiss  common  law  was  markedly 
the  product  of  local  ideas  and  needs.  In  form,  its  features  were 
simplicity  and  a  concreteness  of  detail. 

In  substance,  it  was  the  old  Germanic  peace-law,  but  based  on  a 
special  sense  of  personal  "  honor  "  most  marked  in  the  sturdy  free 
communities  of  these  uplands.  The  basis  of  the  respect  for  the 
peace-command  was  the  honor  of  the  participants.  The  peace- 
breaker  was  honor-less,  a  breaker  of  faith  ;  this  was  the  basic  prin- 
ciple. "  The  peace-breaker",  said  the  Zug  Book  of  Laws,  "shall 
for  two  years  be  deemed  a  perjurer  and  honor-less  ;  his  word  shall 
neither  hurt  nor  help  any  one.  He  shall  bear  no  other  weapon 
than  a  broken  sickle,  and  shall  for  one  half-year  drink  no  wine 
outside  of  his  own  house." 

The  more  modern  notion  of  "  peace  "  as  public  and  general  law^ 
and  order  is  alien  to  the  medieval  idea.  In  the  earlier  thought 
there  w^ere  only  specific  "  peaces  "  ("  Friede  ").  The  most  gen- 
eral forms  were  of  course  the  peace  of  the  land  and  the  peace  of 
God.  But  there  w^as  also  the  peace  of  the  town,  of  the  army,  of  the 
market,  of  the  church,  of  the  court,  of  the  home. 

An  important  part  is  played  by  the  "  pledged  peace  "  and  the 
"  commanded  peace  ",  i.e.  a  peace  specially  supervening  between 
individuals.  The  pledged  peace  takes  the  form  of  a  voluntary 
settlement  of  a  quarrel  by  the  parties.  The  commanded  peace 
is  a  higher  form,  imposed  on  them  by  authority.  Every  member 
of  the  community  has  a  right  and  a  duty  to  command  the  peace, 
to  part  the  combatants,  and  to  pursue  the  wrongdoer.  When  a 
quarrel  arises,  any  citizen  may  and  must  command  the  peace  of 

'  [This  section  is  by  the  Editor;  its  authority  is  the  treatise  of  Dr. 
Pfenninger  ;  for  this  Author  and  work,  see  the  Editorial  Preface.  —  Ed.] 

142 


Chapter  V]  SWITZERLAND  [§  39d 

the  land  (or  of  the  lord).  The  parties  must  be  separated  (and  the 
details  of  the  proceeding  were  carefully  regulated),  and  must  then 
clasp  hands  in  peace.  Thenceforth  they  are  under  a  special  re- 
sponsibility ;  and  a  curse,  an  insult,  or  even  a  contemptuous  word 
will  be  a  breach  of  this  peace.  To  evade  this  more  serious  respon- 
sil)ility  was  naturally  a  frequent  object  of  the  parties  —  by  refusal 
and  flight,  for  example  —  and  the  law  took  note  of  this  in  some  of 
its  measures.  The  special  peace  was  limited  in  its  duration,  — 
sometimes,  by  order  of  the  judge,  until  the  next  market  day  or  like 
term ;  but  often,  by  custom,  till  the  parties  next  ate  and  drank 
together,  and  the  evasion  of  this,  by  a  feigned  friendly  act,  was 
also  struck  at  by  law. 

The  importance  of  the  peace  as  a  basis  of  the  criminal  law  is 
seen  in  the  numerous  prohibitions  of  conduct  likely  to  lead  to  a 
breach  of  the  peace,  —  placing  hand  on  sword,  lifting  a  stone,  lying 
in  wait,  insults,  etc.  These  have  sometimes  been  construed  as 
early  recognitions  of  the  doctrine  of  attempt.  But  the  emphasis 
was  not  so  much  on  the  intent  or  preparation  as  on  the  prevention 
of  a  breach  of  the  peace.  It  cannot  be  conceded  that  there  was  as 
yet  any  distinct  recognition  of  attempt  as  an  independent  ofl'ense, 
nor  of  criminal  intent  in  the  modern  sense. 

Another  aspect  of  the  peace-law  is  seen  in  its  reliance  upon 
the  citizen's  duty  to  interfere  to  keep  the  peace.  No  public  police 
existed.  Only  gradually  and  later  was  there  a  magistracy  with 
"  ex  officio  "  powers  and  duties  to  arrest.  The  medieval  prin- 
ciple of  the  individual  citizen's  duty  to  help  is  in  strong  contrast 
with  the  later  attitude  (bred  by  generations  of  strong  magisterial 
authority)  which  finds  the  citizen  cautious  about  meddling  and 
ready  enough  to  leave  all  such  matters  to  the  official  police. 

Still  another  aspect  is  the  important  distinctions  based  on  pcr- 
.s-<))t(il  honor.  Offenses  as  well  as  punishments  were  classified  by 
their  relation  to  this  sense  of  honor.  Murder  and  stealing  are 
honor-losing;  manslaughter  and  robbery  are  honor-keeping. 
Breach  of  faith  and  fraud  are  honor-losing ;  an  open  act  of  anger 
is  honor-keeping.  Injury  done  in  mutual  combat  with  weapons 
is  lionor-kee])ing ;    injury  to  a  weaponless  man  is  honor-losing. 

And  finally,  as  another  aspect  of  the  peace-system,  is  to  be  noted 
the  persistence  of  the  self-help  principle  for  the  victim  of  a  wrong. 
The  blood-feud  is  still  found,  especially  in  the  primitive  cantons, 
at  the  close  of  the  ^liddle  Ages.  The  right  of  e\er\-  free  man 
to  bear  and  use  arms  and  to  vindicate  his  family  ami  personal  honor 

143 


§  3U(/J  THE   MIDDLE   AGES  [Pakt  I,  Titi.k  II 

is  seen  in  tliis  long  surv^iv^al.  Its  spirit  appears  in  the  formula  of 
the  Bern  Judiciary  Act  (159:5)  for  delivering  the  body  of  the  fleeing 
homicide  to  his  victim's  family  :  "  If  after  summons  in  open  meeting 
he  does  not  appear,  let  him  be  known  as  gone  out  of  peace  to  no- 
peace,  out  of  safety  to  un-safety,  and  let  the  killer's  body  be  de- 
livered to  the  friends  of  the  lifeless  one  to  do  as  they  think  fit." 

Crimes.  —  No  complete  emuneration  of  offenses  is  given  in  the 
statutes.  Custom  and  discretion  controlled  more  or  less.  Murder 
was  the  killing  of  one  with  whom  there  was  a  pledged  peace,  — 
punished  by  death  on  the  wheel ;  for  manslaughter,  the  penalty 
was  beheading.  Bodily  injuries  were  still  classified  in  detail,  — 
wounding,  bloodletting,  mayhem,  blows  with  and  without  weapons, 
hand-laying,  and  so  on.  How  far  was  self-defense  and  self-redress 
("  Xothwehr  ",  necessity)  recognized?  In  early  Germanic  law, 
this  principle  of  excuse  or  extenuation  is  given  a  very  broad  scope  ; 
it  could  be  used  even  for  stealing  and  other  property  wrongs,  and  it 
justified  death  done  upon  the  wrongdoer.  But  gradually  it  be- 
came restricted;  "lawful  necessity"  ("rechte  Nothwehr  "),  a 
phrase  of  the  "  Schwabenspiegel  ",  represents  this  restricted  prin- 
ciple. In  Swiss  law  its  gradual  limitations  did  not  so  much  go 
to  the  kinds  of  wrongs  for  which  it  was  available,  as  to  the 
kinds  of  harm  permissible ;  to  inflict  death  was  allowable 
only  in  the  extremest  cases.  Here  the  judge's  discretion  played 
a  large  part. 

Penalties.  —  Fines  in  the  nature  of  private  settlements  still 
persisted  long  after  State  authority  was  well  organized.  Then 
these  were  replaced  by  a  judge-imposed  fine,  divided  between  the 
court  and  the  injured  person.  Finally,  the  court  takes  the  whole 
fine,  leaving  the  injured  person  to  his  private  suit  for  compensation. 
Both  stages  are  seen  in  the  Bern  Judiciary  Act  of  1593. 

Meanwhile,  corporal  yenalties  come  into  use,  as  a  part  of  the 
growing  system  of  repression  by  political  authority.  Town  gov- 
ernment becomes  more  powerful.  The  burghers'  tradal  prosper- 
ity asserts  itself,  alike  against  robber  barons  and  the  lower  vaga- 
bond and  criminal  classes.  Deterrence  by  fear  is  the  dominant 
spirit  of  this  system.  There  was  no  organized  preventive  repres- 
sion by  police  methods.  Imprisonment  as  a  punishment  is  scarcely 
known.  Cruel  modes  of  the  death  penalty  are  devised  ;  along  with 
hanging  and  beheading  are  found  wheel-breaking,  boiling,  burning, 
burying  alive,  empaling,  and  immuring.  INIutilation  is  a  frequent 
mode,  —  tongue-slicing,  ear-clipping,  hand-hewing,  eye-scooping, 

144 


Chapter  V]  SWITZERLAND  [§  39d 

hot-iron-searing,  and  scalping  (in  three  cantcjns).  The  notion  of 
*'  lex  talionis  "  —  an  eye  for  an  eye,  a  tooth  for  a  tooth  —  is  con- 
stantly apparent.  The  occasional  penalties  of  loss  of  freedom 
were  the  prison,  the  galleys,  house-detention,  and  restriction  to  a 
specified  locality.  Banishment  was  the  chief  penalty  of  this  sort ; 
it  varied  much  in  the  periods  of  time  and  the  district  of  expulsion. 
Confiscation  of  property  usually  attended  it. 

The  fwnor-penalties  were  elaborated.  They  involved  a  loss  of 
honor  and  of  weapon  for  a  greater  or  less  time,  usually  with  some 
ignoble  incident,  such  as  carrying  a  broken  weapon,  dragging  a 
stone,  standing  at  the  church-door,  wearing  an  unseemly  garment. 

The  application  of  the  severest  penalties  was,  to  be  sure,  more 
or  less  rare ;  commutation  of  a  cruel  death  to  simple  death,  or  of 
death  to  banishment,  is  frequently  recorded.  The  lay-judge  of 
the  popular  governments  tended  to  milder  penalties  than  the 
official  judge  of  the  imperial  and  royal  regions. 


145 


Chapter  VI 
FRANCE    IN    THE    LATER    MIDDLE    AGES^ 

§  39e.     General    Features    of    Me- 1  §  39/.     Specific  Crimes, 
dieval    Criminal    Law    in    §  39^.     Punishments. 
France.  I 

§  39e.  General  Features  of  Medieval  Criminal  Law  in  France.  — ■ 
The  Custumals  of  the  Middle  Ages  contain  no  account  of  what  we 
call  to-day  the  theory  of  criminal  law.  No  endeavor  was  made  in 
those  days  to  determine  carefully  what  constitutes  the  true  basis 
of  the  right  to  punish,  the  desirable  qualities  of  a  punishment,  and 
the  defects  to  be  avoided.  Our  ancient  authors  accept  without 
inquiry  the  very  simple,  but  often  altogether  false,  ideas  which 
were  current  in  their  time.  The  Italian  jurisconsults  of  the  1300  s 
were  in  advance  of  our  own ;  for  Gandinus,  Bartolus,  and  Baldus 
in  their  writings  allotted  a  relatively  important  part  to  criminal 
law  ;  yet  even  they,  in  spite  of  the  early  Renascence  of  law  in  their 
country,  did  not  study  the  problem  of  the  right  to  punish,  —  did 
not  even  seem  to  suspect  its  existence.  We  find  in  their  works 
numerous  details  concerning  judiciary  organization,  the  procedure 
of  penal  tribunals,  and  punishments,  but  no  thought  concerning 
the  nature  and  extent  of  the  right  to  punish.  All,  however,  strive 
to  give  greater  prominence  to  inquisitorial  procedure,  that  is,  to 
the  procedure  initiated  by  the  judge.-  Baldus  advocates  this  pro- 
cedure as  soon  as  a  criminal  act  is  publicly  known ;  but,  while 
trying  by  this  means  to  assure  a  more  general  and  efficacious  re- 
pression, he  carefully  avoids  the  subtleties  of  scholasticism ;  un- 
like other  jurisconsults  of  his  time,  he  condemns  torture,  and 

1  [This  chapter  =  Glasson,  "Histoire  du  droit  et  des  institutions  de 
la  France",  Part  IV,  Chapter  xii.  Vol.  VI,  pp.  640-705.  For  this 
author  and  work,  see  the  Editorial  Preface.  —  Ed.] 

-  [On  these  points  of  procedure,  see  Estnein's  "History  of  Continental 
Criminal  Procedure",  Vol.  V  of  the  present  Series.  —  Ed.] 

146 


Chapter  VI]  FRANCE    IN    THE    LATER   MIDDLE   AGES  [§  39e 

claims  even  that  the  judge  ought  to  incur  the  death  penalty  if  the 
accused  when  subjected  to  torture  dies  from  the  effect  of  the  suffer- 
ing.^ As  for  French  practitioners,  sometimes  they  followed  Ger- 
manic or  Roman  traditions,  sometimes  they  were  prompted  by  the 
opinions  of  the  Church ;  but  never  did  they  attemi)t  to  construct 
a  purely  rational  penal  system.  This  question  did  not  yet  even 
exist  for  them.  Certain  crimes,  such  as  homicide  ["  meurtre  "], 
arson,  battery,  wounding,  and  insult,  were  punished  according  to 
the  old  Germanic  traditions.  Other  crimes,  such  as  heresy  and 
usury,  had  a  clearly  canonical  origin. 

Xot  infrequently,  too,  through  the  influence  of  the  Church,  we 
find  the  punishments  of  conscience  mingled  with  those  of  society. 
Many  penalties,  such  as  penance,  "  I'amende  honorable,"  pilgrim- 
age, and  especially  excommunication,  which  ought  to  have  pre- 
served a  purely  religious  character,  found  their  way  more  or  less 
into  the  law ;  though  this  did  not  extend  beyond  an  imitation  of 
practices  common  in  the  previous  period,  especially  under  the 
Carolingians.  The  secular  criminal  judge,  moreover,  often  took 
into  consideration  the  confession  and  the  repentance  of  the  culprit, 
and  on  these  grounds  diminished  the  punishment  to  a  marked  and 
even  excessive  extent.  That  the  judge  should  proceed  thus  in 
the  tribunal  of  conscience  we  can  easily  understand ;  i)ut  it  was 
dangerous  to  follow  the  same  method  in  secular  justice. 

Though  some  of  the  punishments  inflicted  in  the  Middle  Ages 
originated  in  the  old  Germanic  regional  Customs  (chief  among 
these  is  the  fine,  certain  forms  of  mutilation,  and  perhaps  even 
hanging),  yet  certain  offenses  are  borrowed  from  Roman  law. 
This,  however,  was  at  the  end  rather  than  at  the  beginning  of  the 
Middle  Ages.  In  the  earlier  days,  criminal  justice  had  been  exer- 
cised chiefly  by  the  courts  of  the  feudal  lords  and  even  by  those  of 

'  See  on  these  various  points:  Sarigny,  "Histoire  du  droit  au  moycn 
age",  trans.  Guenoux,  Vol.  IV,  esfXH-ially  pp.  184,  201,  20;{,  227  ;  _  üit  ßni/s, 
"Histoire  du  droit  criminel  de  la  France,  depuis  le  XVIe  jusqu'au  XlXe 
siecle",  Vol.  V,  p.  271,  et  seq.;  Bethniann-Holhveg  gives  a  list  of  the 
jurisconsults  of  the  epoch  who  treated  the  question  of  criniinal  procedure 
and  incidentally  touc^hed  upon  certain  questions  of  penal  law.  Tiie  most 
famous  in  the  1100s  and  1200s  are  Bulgarus,  i'lacentiiuis,  .Uhi'rtus 
Galeotus,  Hubertus  do  Boiuicurso,  Hubertus  dv  Bobio.  Holandinus  do 
Romaneiis,  Giovanni  Andrea,  AlluTtus  de  (iaiulino.  and  .lacobiis  do 
Belvisio.  Most  notable  is  the  name  of  (iuillaume  Durant  (or,  Durandus), 
born  in  1237,  the  author  of  "Speculum  juris".  See  Bclhmanit-HoUucg, 
"Der  Civilproeess  des  gemeinen  Rechts,"  Vol.  VI,  §§  129,  et  seq.,  p.  197, 
where  considerable  information  conci-riiing  these  jurisconsults  and  their 
work  will  be  found.  On  this  same  subject  see  also  Savigny,  "Histoire  du 
droit  romain  au  moyen  age." 

147 


§  3i)t]  THE    MIDDLE    AGES  [I*AKT  I,  TiTLK  IT 

(•(Ttiiin  cities.  Tlic  assiduous  ofVorts  j)ut  fortli  l)y  royalty  to  re- 
t;ain  the  ri<i:ht  of  jurisdiction  over  feudalism  are  well  known.  Roy- 
alty was  stoutly  seconded  in  this  task  by  the  leftists  (or  secular 
jurists),  who  labored  at  transform in<^'  feudal  criminal  law  into 
royal  criminal  law.  It  was  in  this  ]x'riod  that  they  revived  a  large 
number  of  the  okl  Roman  laws. y  Even  the  1300  sand  1400  s  saw 
the  law-makers  reestablish  the  cntrie  of  "  lese  majeste",  as  it  had 
been  understood  by  the  Roman  jurisconsults  of  the  imperial  epoch, 
with  the  sole  aim  of  consolidating  the  authority  of  the  king  and  of 
raising  his  person  still  higher  in  the  social  hierarchy^- 

But  if  it  is  only  incidentally  and,  as  it  were,  casually  that  the 
jurisconsults  give  any  hints  as  to  the  nature  and  the  basis  of  the 
right  to  punish,  they  try  very  early,  nevertheless,  to  classify  both 
crimes  and  punishments.  jMost  of  the  old  Custumals  strive  to 
group  the  violations  of  the  law  and  even  set  down  for  each  of  them 
the  punishment  which  is  ordinarily  its  recompense.  It  was  seen 
that  each  Custumal  should  include  a  kind  of  summarized  penal 
code,  to  enable  every  man  to  know  the  law  both  for  crimes  and  for 
punishments."^  Logically,  there  is  among  crimes  an  obvious  dis- 
tinction which  lies  in  the  very  nature  of  things ;  i.e.  some  are 
specially  serious,  others  are  ordinary.  One  may,  no  doubt,  lay 
dowai  further  distinctions ;  for  example,  among  crimes  some  are 
heinous ;  but  that  would  be  entering  prematurely  into  the  details 
of  the  subject,  and  we  shall  see  that  all  Custumals  did  not  go  so  far.-^ 

Beaumanoir  classifies  crimes  under  three  headings :  ^  there  are 
great  crimes,  such  as  homicide  ("meurtre  "),  treason,  rape,  suicide, 
arson,  theft,  heresy,  and  counterfeiting,  —  all,  in  general,  punish- 
able by  death.     Medium    crimes   and    petty  misdemeanors  are 

^  See,  for  example,  Beaumanoir,  chapters  30,  31,  32,  33.  Chapter  30 
is  devoted  to  offenses  [''meffes"]  in  general;  chap.  31  treats  chiefly  of 
larceny ;  chap.  32  refers  to  disseizins,  violence  and  disturbances ;  chap. 
33  deals  with  fraud.  Further  on,  chap.  69  deals  with  accidental  injuries. 
By  bringing  together  all  these  chapters  we  can  form  a  clear  idea  of  Beau- 
manoir's  entire  system  of  criminal  law.  The  "Livre  de  jostice  et  de  plet" 
also  treats  of  crimes  and  punishments,  beginning  with  book  XVII,  tit. 
11,  p.  275  et  seq.,  to  the  end.  See  also  "Anciennes  coutumes  d'Anjou 
et  du  Maine",  F,  no.  1255,  Vol.  II,  p.  467,  Vol.  IV,  pp.  264  et  seq.:  Bou- 
teiller,  "Somme  rural",  book  I,  tit.  28,  p.  287;  tit.  29,  p.  304;  tit.  35,  p. 
418.  This  last  title  is  devoted  to  larceny ;  the  preceding  titles  deal  in 
general  with  all  crimes  and  all  punishments.  One  may  also  consult  the 
"Grand  coutumier  de  Normandie",  chaps.  67  et  seq. 

^Nevertheless,  heinous  crimes  were  more  than  once  set  apart.  Thus, 
Philip  III  obtained  from  the  papacy  the  concession  that  the  crusaders 
should  be  deprived  of  the  privilege  of  the  clergy  and  be  responsible  to 
secular  tribunals  for  such  crimes;  cf.  Langlois,  "Le  regne  de  Philippe  III 
le  Hardi",  p.  271. 

^  Beaumanoir,  chap.  30,  vol.  1,  p.  410. 

148 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  39e 

equally  numerous,  und  each  of  them  presents  often  a  ^reat  \ariety 
as  to  details;  there  are  insults  of  all  kinds,  damage  to  property 
or  its  possession,  ofienses  against  procedure,  etc.  These  offenses 
are  generally  punished  by  fine ;  hut  if  the  judge  finds  this  in- 
sufficient he  has  the  right  to  add  a  prison  penalty,  and  when  the 
culprit  is  unable  to  pay  the  fine  he  is  arrested  for  the  debt." 

The  "  grand  Coutumier  de  Normandie  "  distinguishes  two  kinds 
of  charges,  some  are  "  simple  ",  and  end  "  per  simplicem  legem  ", 
others  are  criminal,  and  are  known  as  "  querehe  per  legem  appa- 
rentem."  They  are  called  criminal  because  they  charge  a  crime 
which  may  involve  loss  of  life  or  limb,  and  they  are  said  to  "  end 
by  means  of  visible  law  ",  i.e.  by  the  duel  or  by  some  other  form  of 
the  judgment  of  God.^  The"  Anciennes  coutumes  d'Anjou  et  du 
Maine  "  make  no  distinction  between  great  aufl  medium  crimes ; 
but  it  is  plain  that  their  authors  are  acquainted  with  this  di\ision, 
for  they  make  use  of  it  in  their  account  of  crimes  and  punish- 
ments.^ In  the  "  Grand  Coutumier  de  France  ",  the  division  is 
better  accentuated,  and  its  author  even  is  careful  to  reserve  the 
term  "  crime  "  for  the  most  serious  infractions;  he  calls  "  misde- 
meanor "  ("  delit  ")  what  Beaumanoir  before  him  had  designated 
under  the  name  of  "  lesser  ofi'ense."  Bouteiller,  on  the  other 
hand,  continues  to  say  that  crimes  are  either  capital  or  non- 
capital, according  to  wdiether  they  deserve  death  or  some  other 
penalty.^" 

Throughout  the  early  Germanic  period  in  France  the  concep- 
tion of  the  feud,  or  right  of  personal  vengeance,  had  persisted, 
undergoing  some  modifications  in  the  course  of  centuries."     And 

^  Beaumanoir,  chap.  30,  no.  19,  V(3l.  T,  p.  410.  —  Bouteillor  was  thus 
to  express  the  same  idea  later:  "En  delit  ne  ehet  point  de  cession"; 
that  is  to  say,  the  debtor  cannot  transfer  property  in  order  to  avoid 
arrest  for  debt,  and  if  he  cannot  atone  for  liis  crime  witli  money,  then 
he  must  pay  "by  bodily  punishment  and  imi)ris()iiment  ;  for  it  would 
be  too  great  an  iiidueement  to  evildoing  if  a  poor  nuui  were  acquitted  of 
his  crime  because  of  his  poverty."  Bouteiller,  "Somme  rural",  l)ook 
II,  tit.  20,  p.  801. 

»  "Grand  coutumier  de  Normandi(>",  chap.  67,  Gniclii/,  p.  (U.  —  This 
Custumal  continues  the  enumeration  of  the  chief  crimes  as  follows  :  "There 
are  different  kinds  of  criminal  comi)laints  accordiiit:  to  the  difTerent 
consequenc(>s  of  the  various  crimes.  There  are  c()nii)Iain(s  for  murder, 
homicide,  wounding,  broken  truces,  rape,  theft,  robbing  of  a  plough, 
plundering  a  house  or  personal  property,  and  treason." 

»  See  "Ancienne  coutume  d'Anjou  et  du  Maine",  F,  no.  1255,  Vol.  II, 
p.  4(57  et  seq. 

'»  See  book  I,  tit.  28,  p.  170.  It  will  be  noticed,  however,  that  certam 
punishments  were  classed  with  the  death  penalty,  and  from  that  time 
the  crime  became,  under  such  circumstances,  a  capital  one. 

»'  In  certain  regions  we  find  traces  of  the  right  of  vengeance  down  to 

149 


§  30t']  THE   MIDDLE  AGES  [Pakt  I,  Title  II 

it  is  still  this  same  basis  on  which  the  jurists  of  the  Middle  Ages 
placed  the  right  to  punish.  But  instead  of  a  private  vengeance  it 
is  now  a  matter  of  public  vengeance :  it  is  society,  and  no  longer 
the  individual,  that  demands  reparation  for  the  wrong  done  by  the 
criminal.  Beaumanoir  declares  explicitly  that  criminals  must  be 
taught  that  there  is  a  right  to  vengeance  for  all  ofi'enses.^-  He 
does  not  even  incline  toward  lenity,  and  his  habits  as  a  magistrate 
accustomed  to  repress  crimes  lead  him  to  say  that  in  case  of  doubt 
one  must  punish  severely  in  order  to  give  an  example  to  others. ^^ 
Bartolus  has  no  different  doctrine.  "  There  are  ",  he  says,  "  two 
legal  ways  of  avenging  crimes ;  the  accusation  by  a  private  party 
and  the  procedure  initiated  by  the  judge.  The  judge  initiates  his 
procedure,  1st,  when  he  is  called  upon  to  make  an  investigation 
as  a  result  of  an  accusation ;  2d,  when  he  begins  an  investigation 
of  his  own  accord."  ^^ 

But  during  the  latter  part  of  the  Äliddle  Ages  the  idea  of  the 
right  to  punish  shows  a  marked  decrease  of  rigor.  The  "  Anciennes 
coutumes  de  I'Anjou  et  du  Älaine  "  speak  no  longer  of  the  brutal 
right  to  vengeance ;  they  still  lay  weight  on  the  example  afforded 
by  punishment,  but  the  latter  is  also  considered  as  a  means  imposed 
upon  the  criminal  of  paying  his  debt  to  society,  and  at  times  of 
making  it  impossible  for  him  to  disturb  the  public  peace.  We  see 
also  the  beginning  of  the  idea  of  social  self-defense.^^     Bouteiller 

the  end  of  the  Middle  Ages,  and  even  during  the  first  part  of  the  follow- 
ing epoch.  See,  for  example,  Giiyot,  "Un  nouvel  exemple  d'urfehde", 
Nancy,  1892,  and  the  critical  study  of  this  memoir  which  I  published 
in  the  "Bulletin  du  Comite  des  travaux  liistoriques  et  scientifiques. 
Section  des  sciences  eeonomiques  et  sociales",  1892. 

'2  Beaumanoir,  chap.  30,  no.  1,  Vol.  I,  p.  410,  where  the  word  vengeance 
is  met  at  eyer3^  instant.  It  is  also  stated  that  the  lord  takes  vengeance 
on  the  criminal,  but  in  so  doing  he  appears  as  the  representative  of  society 
and  not  as  a  private  individual. 

"  Beaumanoir,  chap.  30,  no.  61,  Vol.  I,  p.  429.  "It  is  an  excellent 
thing  to  anticipate  criminals,  and  to  punish  them  so  severely,  according 
to  their  crimes,  that  through  fear  of  justice  others  mil  take  warning  and 
abstain  from  offending." 

'*  "Jus,  ex  quo  sumitur  vindicta,  est  duplex,  scilicet  accusatio  et 
officium  judicis.  Officium  exereitur,  quando  per  inquisitionem  ad  alterius 
denuntiationem  proceditur  quandoque  per  inquisitionem  factam  proprio 
motu  judicis."  See  Du  Boys,  "Histoire  du  droit  eriminel  de  la  France", 
Vol.  V,  p.  280. 

15  "Anciennes  coutumes  d'Anjou  et  du  Maine",  L,  no.  404,  Vol.  IV, 
p.  308 :  "The  judge  ought  to  know  that  a  criminal  must  be  punished  for 
four  reasons :  1st,  for  his  crimes ;  2d,  in  order  to  frighten  and  give  an 
example  to  others  against  evil-doing ;  3d,  in  order  to  remove  the  said 
malefactors  from  the  community  of  good  people  and  thus  avoid  their 
exercising  an  evil  influence  over  them ;  4th,  to  prevent  the  evils  which 
they  might  still  commit  if  they  escaped.  The  judge  must  exercise  im- 
partiality in  judgment  between  the  parties  with  no  regard  to  persons." 

150 


Chapter  VI]  FRANCE    IN   THE   LATER   MIDDLE   AGES  [§  39e 

does  not  attempt,  any  more  than  others,  to  speeify  the  cause  of 
punishment,  but  he  advises  the  judges  to  be  indulgent  and  to  take 
into  account  a  host  of  circumstances  in  its  apphcation ;  —  the 
character  of  the  victim,  the  condition  of  the  criminal,  the  time  and 
the  place  where  the  crime  was  committed,  and  the  previous  habits 
of  the  culprit.^^ 

These  are  only  the  observations  of  a  jurist  inclined  toward  indul- 
gence. Society's  right  to  vengeance,  and  the  necessity  of  intimi- 
dating through  the  dread  of  corporal  punishments,  are  the  two  bases 
of  the  right  to  punish  in  the  ^Middle  Ages.  With  such  principles 
they  could  have  devised  punishments  more  or  less  fixed,  more  or 
less  uniform  for  all,  and  of  a  severity  commensurate  with  the 
gravity  of  the  crime ;   yet  nothing  of  the  kind  was  done. 

Under  the  influence  of  old  Germanic  regional  Customs  certain 
offenses  continued  to  be  punished  with  extreme  leniency;  they 
were  repressed  only  by  means  of  simple  fines.  Beaumanoir  al- 
lowed himself  to  add  imprisonment  whenever  the  fine  seemed  to 
him  clearly  insufficient.  On  the  other  hand,  under  the  influence 
of  Roman  law,  and  even  of  old  Germanic  regional  Customs,  ex- 
tremely severe  punislmients  were  inflicted  at  times.  This  severity 
astonishes  us  to-day,  especially  w^hen  we  consider  the  cases  where 
the  Church  succeeded  in  making  people  consider  simple  sins  of 
conscience  as  real  crimes. 

However,  there  did  not  exist,  properly  speaking,  a  punishment 
directly  and  necessarily  attached  to  a  certain  crime.  To  be  sure, 
the  Custumals  point  out  the  punishment  with  which  the  culprit 
is  ordinarily  threatened  ;  but  they  give  us  only  hints.  Generally, 
the  judge  enjoys  the  most  absolute  power ;  he  can  strike  as  he 
pleases.  In  short,  punishments  are  arbitrary.  A  certain  oft'ense 
is  sometimes  punished  with  extreme  severity,  sometimes  with 
reprehensible  indulgence.  In  1330,  at  Chambery,  a  man  guilty 
of  arson  is  led  to  the  stake  ;  while  another,  guilty  of  the  same  crime, 
is  punished  with  only  a  ridiculous  fine  of  ten  deniers.  A  little 
later,  of  two  men  accused  of  sodomy,  one  is  burned  alive,  the  other 
makes  a  composition  with  the  count  for  eighteen  gold  florins,  and 

^^  Bouteiller,  "Somme  rural",  book  I,  tit.  29,  p.  180:  "It  can  and 
ought  to  be  known  that  the  punishment  of  the  law  was  regarded  by  tho 
ancients  as  a  means  of  curbing  the  evil  intention  of  criminals,  those  wlio 
wish  to  injure  and  wrong  others,  and  oppress  tiiem  l)y  their  demands; 
nevertheless,  the  judge  must  always  understand  punislnuent  in  its  mihier 
form;  for  as  the  wist-  man  says,  justice  without  nuTcy  is  too  hard  and 
mercy  without  justice  is  too  lax  ;  and  thereforr  there  ouglU  to  be  modera- 
tion and  a  middle  course  for  the  wise  discretion  of  the  judge." 

151 


§  30e]  THE   MIDDLE   AGES  [Paht  I,  Titlk  II 

the  count  even  remits  liim  the  amoiint.^^  At  times  the  most  severe 
j)unishments  were  inflicted  without  the  formahty  of  a  trial.  On 
June  '50,  127S,  Pierre  de  la  Broce  was,  without  trial,  hanged  at  the 
gallows  for  common  thieves,'**  probably  by  virtue  of  the  then 
asserted  right  over  life  and  death  attributed  to  the  king  as  the  sym- 
bol of  justice.  To  be  sure,  such  irregularities  were  not  common, 
and  the  necessity  of  a  legal  procedure  was  recognized  ;  but  the  pro- 
cedure tended  to  become  more  and  more  secret,  and  thus  to  deprive 
the  accused  of  guarantees  of  fair  treatment. 

Side  by  side  with  these  serious  defects — ^a  continual  cause  of  in- 
justice and  inequality  —  two  essential  and  very  just  principles  had, 
however,  been  proclaimed  at  a  very  early  date,  namely  :  every  crime 
implies  volition  and  freedom  on  the  part  of  the  one  who  has  com- 
mitted it ;   and  every  crime  is  essentially  its  author's  personal  act. 

Beaumanoir  gives  numerous  applications  of  the  principle  that 
crime  implies  intent  and  freedom  in  evil-doing.  Thus,  he  who 
kills  in  war  commits  no  offense,  not  even  if  by  mistake  he  has  taken 
his  friend  for  an  enemy.'^  No  more  is  a  man  responsible  for  the 
accidental  homicide  committed  in  a  tournament  or  a  joust.-** 
Xor  are  parents  responsible  for  the  death  of  one  of  their  children 
through  mere  chance.-^  One  is  not  answerable  for  a  death  or 
wounds  of  which  he  has  been  the  involuntary  cause,  if  he  had  used 
care  to  prevent  such  a  misfortune.--  In  this  respect,  as  can  be 
seen,  the  law  had  far  advanced  from  the  Germanic  primitive  law 
which  did  not  distinguish  clearly  the  crime  of  murder  from  the  in- 
voluntary act  which  caused  death  or  wounds.-^  From  this  point 
of  view  considerable  change  and  progress  had  been  achieved. 

Since  crime  implied  evil  intent,  the  man  who  kills  or  wounds  in 
self-defense  is  not  guilty.-^     This  principle  of  the  right  to  seli- 

1^  Chapperon,  "Chambery  ä  la  fin  du  XlVe  siecle",  pp.  182  and  183. 

1*  See  Langlois,  "Le  regne  de  Phillippe  III  le  Hardi",  p.  30. 

1^  Beaumanoir,  chap.  69,  no.  2,  Vol.  II,  p.  489. 

2"  Beaumanoir,  chap.  69,  no.  17,  Vol.  II,  p.  492.  The  following  number 
gives  other  examples  of  homicides  committed  by  mere  chance  and  which 
entail  no  punishment. 

21  Beaumanoir,  chap.  69,  no.  5,  Vol.  II,  p.  485. 

22  Beaumanoir,  chap.  63,  nos.  3  et  seq..  Vol.  II,  p.  419. 

23  See,  for  instance,  law  of  the  Visigoths,  X,  8 ;  law  of  the  Saxons,  tit. 
XII.  —  Najii,  "Studii  di  diritto  Longobardo",  p.  38;  Viollet,  '"Etablisse- 
ments de  Saint  Louis",  Vol.  I,  p.  232.  Bouteiller  tells  us  that  homicide 
is  considered  lawful  in  war  or  in  a  judicial  duel ;  also  if  one  kills  a  man 
who,  having  been  outlawed  the  pale  of  the  law,  breaks  the  ban.  This 
last  case  is  a  relic  of  the  primitive  system  which  it  would  have  been  better 
to  suppress. 

2^  Beamnanoir,  chap.  30,  nos.  65  et  seq..  Vol.  I,  p.  432. 

152 


Chapter  VI]  FRANCE   IN   THE    LATER   MIDDLE   AGES  [§  39e 

defense  was  invoked  in  certain  Royal  Letters  of  January  2S, 
1368  (concerning  the  parish  of  Peronne),  which  made  a  notable 
extension  of  the  principle ;  according  to  Article  8  of  these 
Letters,  whenever,  in  self-defense,  one  kills  a  man  who  wishes 
to  enter  a  house  without  right,  one  is  not  liable  to  any  pun- 
ishment.-"' 

Beaumanoir  is  not  alone  in  proclaiming  the  principle  of  the 
necessity  of  a  criminal  intent ;  we  find  it  also  in  almost  all  the  other 
custumals  which  touched  upon  this  question.  The  "  Grand 
Coutumier  de  Xormandie  "  deals  with  the  case  of  a  lunatic  killing 
or  wounding  another  man ;  he  must  be  put  in  prison,  but  through 
mere  precaution,  without  trial,  and  without  infliction  of  any  pun- 
ishment, and  while  there  he  must  be  cared  for  at  his  own  ex{)ense, 
if  he  is  well-to-do,  and  by  charity,  if  he  is  poor.-^  One  of  the  Cus- 
tumals of  Anjou  remarks  that  the  intent  is  one  of  the  essential 
elements  of  the  crime.-"  According  to  the  "  Livre  des  droiz  et  des 
commandemens  "  lawful  defense  of  one's  self,  or  of  those  who  are 
closely  related,  excludes  criminality,  if  the  defense  is  proportional 
to  the  attack.-^  Bouteiller  notes  that,  according  to  the  Custumals. 
the  death  penalty  is  incurred  even  when  the  homicide  is  the  result 
of  a  simple  imprudence,  unless  the  prince  grants  a  pardon  ;  but  he 
clearly  prefers  the  Roman  doctrine  which  exempts  from  all  punish- 
ment.-^ Suicide  is  no  crime  if  it  is  the  act  of  an  insane  person, 
or  if  it  is  induced  by  poverty.^" 

But  from  the  moment  that  criminal  intent  is  found,  there  is  a 
crime,  regardless  of  sex  or  age.  Women  are  punished  like  men, 
with  only  rare  exceptions.  They  incur  the  death  penalty,  except 
that  it  is  inflicted  in  a  special  manner ;  they  are  burned  or  buried 
alive  instead  of  being  hanged.     However,  Bouteiller  advises  that. 

"  Letters  of  Charles  V,  January  28,  13G8,  Isambcrt,  Vol.  V,  p.  320. 

2^  This  Custumal  adds  that  it  is  even  prudent,  before  the  lunatic  has 
disturbed  the  public  peace,  to  have  him  guarded  by  his  own  family,  or. 
if  there  be  no  relatives,  by  neighbors.  See  "Grand  coutumier  de  Xor- 
mandie", chap.  79,  edition  Gruchy,  p.  184;  "Livre  de  jostice  et  de  plet", 
p.  73. 

"  "Anciennes  coutumes  d'Anjou  et  du  Maine",  L,  no.  409,  Vol.  IV, 
p.  310. 

2*  Thus  it  is  not  permissible  to  employ  weapons  against  one  who 
threatens  only  with  the  fist  and  the  stick,  unless  one  is  feeble  or  sick ; 
thus  it  depends  on  the  circumstances.  See  "Livre  des  droiz  et  des  com- 
mandemens", nos.  500  and  997. 

"  Bouteiller,  "Somme  rural",  book  H,  tit.  40,  edition  of  1('»21,  p. 
1493. 

^^  "Registre  criminel  de  Saint-Martin-des-Champs  de  Paris",  pp.  I'.  > 
and  299;    Bouteiller,  "Somme  rural",  book  I.  chap.  39. 

153 


§  39e]  THE  MIDDLE  AGES  [Part  I,  Title  II 

while  in  prison,  they  be  treated  more  gently  than  men,  and  he  adds 
that  in  civil  cases  they  incur  only  a  half  fine.''^  Minors  are  pun- 
ished like  adults  as  soon  as  they  have  reached  the  age  of  discern- 
ment ;  ^^  minority  in  itself  is  no  ground  for  excuse.  But  it  was 
decided  at  an  early  date  that  there  was  no  crime  before  the  age  of 
fourteen  or  fifteen,  according  to  the  regional  Customs;  except, 
as  Bouteiller  adds,  that  corrective  measures  should  be  applied 
to  wards  who  have  ofiended.'''^ 

In  view  of  the  Custumals  so  clearly  admitting  the  principle  of 
responsibility  and  making  such  varied  applications  of  it,  it  is 
curious  that  they  should  have  committed  the  solecism  of  al- 
lowing criminal  prosecutions  against  animals.  This  procedure 
Avas  used,  not  only  when  the  animals  figured  as  the  accomplices 
in  certain  crimes  committed  by  men,  but  also  when  they  were 
charged  as  the  only  guilty  parties.  We  find  many  examples  of 
such  trials  in  the  ^Middle  Ages,  and  they  are  not  uncommon  even  in 
the  following  period.  These  prosecutions  of  animals  are  too  well 
known  to  need  here  any  special  account  of  this  judicial  curiosity. 
An  actual  mock  trial  was  held  when  the  animal  had  (for  instance) 
killed  a  woman  or  a  child ;  the  death  penalty  was  inflicted,  with  all 
formality  at  the  usual  place  of  execution.  The  Church  has  often 
been  reproached  with  favoring  these  trials ;  but  there  is  no  serious 
proof  to  support  this  accusation.  The  truth  is  that  jurists  and 
the  Custumals  conceded  something  to  popular  beliefs ;  moreover, 
another  motive  was  the  general  one  of  deterring  from  crime  by  in- 
spiring fear.  Upon  the  revival  of  Roman  law  (a.D.  1200-1300), 
it  was  possible  to  invoke  certain  texts  of  the  Digest  which  seem 
to  concede  intelligence  to  animals  and  hence  a  capacity  for  crime.^^ 
But  the  jurist  Ayrault,  in  a  later  century,  remarked  that  if  these 
trials  were  conducted  for  the  purpose  of  intimidation,  they  com- 
pletely missed  the  aim  in  view ;  for  in  his  day  they  had  ended  by 
causing  ridicule  rather  than  the  desired  effect.  Long  before  then, 
Beaumanoir  had  expressed  disapproval  of  these  trials  of  animals ; 
he  found  it  absurd  to  condemn  an  animal  devoid  of  intelligence ; 
at  the  same  time,  he  hinted  that  the  feudal  lords  had  some  interest 

31  Bouteiller,  "Somme  rural",  book  II,  tit.  40,  ed.  1621,  p.  1495. 

3^  "Anciennes  coutumes  d'Anjou  et  du  ^Nlaine",  F,  no.  253,  Vol.  II, 
p.  115. 

3'  Beaumanoir,  chap.  31,  no.  12,  Vol.  I,  p.  462;  "Li^Te  des  droiz  et 
des  oommandemens",  Vol.  II,  no.  463;  Bouteiller,  "Somme  rural", 
book  II,  tit.  40. 

^*  See,  for  instance,  1.  1,  §  11,  "Si  quadrupes  pauperiemfecisse  dicatur", 
IJv,  1. 

154 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  39e 

in  preserving  these  trials,  and  that  also  is  perhaps  one  of  the  reasons 
which  explain  their  frequency  in  the  Middle  Ages.'^' 

The  owner,  indeed,  without  being  chargeable  strictly  with  a  crime, 
might  be  held  responsible  for  the  act  of  his  animal,  and  might  be 
liable,  not  for  the  appropriate  punishment,  but  for  damages  and 
even  some  penalty ;  the  master's  liability  is  not  that  of  the  author 
of  the  crime,  but  merely  that  of  one  responsible  for  the  animal.''^ 
And  it  is  here  worth  noting  that  the  old  regional  Customs  often 
preserved  the  enormous  fines  imposed  in  the  preceding  period  in 
such  cases.  In  the  Germanic  laws  it  was  natural  to  find  that,  in 
case  the  death  of  a  man  was  occasioned  by  an  animal,  its  owner 
was  to  pay  composition  as  if  he  were  the  author  of  the  homicide.^^ 
This  was  explainable  in  an  epoch  when  no  distinction  was  made 
between  willful  and  accidental  homicide.  But  by  the  [Middle 
Ages  new  principles  had  evolved  ;  it  was  conceded  that  there  is  no 
crime  without  evil  intent.     Henceforth,  as  Beaumanoir  pointed 

'5  It  is  curious  that  this  passage  is  not  known  to  or,  at  least,  has  not 
been  cited  by  the  authors  who  have  devoted  monographs  to  trials  against 
animals;  Beaumanoir,  chap.  69,  no.  6,  Vol.  II,  p.  485:  "Those  who 
administer  justice  in  their  lands  put  animals  to  trial  when  they  kill  a 
person ;  so,  if  a  sow  or  some  other  animal  kills  a  child,  they  hang  the 
animal  and  drag  around  the  body  ;  but  this  should  not  be  done,  for  dumb 
beasts  do  not  know  what  is  right  and  what  is  wrong,  and  therefore  it  is 
justice  lost.  For  justice  should  be  done  to  avenge  the  offense,  and  in 
order  that  the  author  of  the  crime  may  know  and  understand  that  he 
suffers  for  this  offense  a  certain  punishment;  but  this  understanding  is 
not  to  be  found  in  dumb  beasts.  This  consideration  is  denied  them  by 
those  who  try  in  court  and  put  to  death  dumb  beasts  for  crimes  ;  the  lords 
do  this  for  their  own  profit,  as  a  thing  to  wliich  \\\Qy  are  la\\'fully  entitled." 
Bouteiller  also  devotes  a  paragraph  to  trials  of  animals  in  title  .38  of 
book  I,  of  his  "Somme  rural",  ed.  1621,  p.  267.  For  the  details  con- 
cerning these  trials  and  examples  of  them  which  have  been  noted,  one 
may  consult,  among  other  works,  the  following:  Lounn<lrc,  "Epopee 
des  animaux",  in  the  "Ke\iie  des  Deux  Mondes"  of  January  15,  18.54; 
Menabrea,  "De  I'origine,  de  la  forme  et  de  I'esprit  des  jugeinents  rendus 
au  moyen  age  contre  les  animaux",  Chambery,  1846-1847;  a  report 
made  before  the  "Academic  Delphinale",  August  G,  1847,  by  Canon 
Chambon,  on  the  preceding  work  of  ]M.  INIenabrea ;  Bcrrial  Saitit-Prix, 
"Recherches  sur  les  proces  fait  dans  le  moyen  age  aux  animaux."  Tliis 
author  notes  more  than  eighty  death  penalties  or  excommunications 
pronounced  between  1120  and  1741  upon  all  sorts  of  animals,  from  the 
donk(\y  and  the  sow  to  the  grassliopper.  See  also  Du  Boi/s,  on  the  i)ro- 
ceedings  against  animals  during  the  ^Middle  Ages,  appendix  to  Vol.  V  of 
the  "Ilistoire  du  droit  criminel  de  la  France",  p.  656;  Tanon,  "  Lo 
registre  criminel  do  Saint-Mart iii-des-(^hainps",  p.  cxiv ;  [Evans,  "The 
Criminal  Prosecution  and  Capital  Punislnnent  of  Animals",  New 
York,  1907;  von  Amira,  "Thierstrafen  und  Thierprozesse",  Innsbruck, 
1892.  —  Ed.] 

'"  Beaumanoir,  chap.  69,  no.  6,  Vol.  II,  p.  486. 

"  See,  for  example.  Law  of  the  Saxons,  tit.  XIII,  §  1  ;  Edict  of  Ho- 
tharis,  chap.  14;  Perlz,  "Leges",  Vol.  IV,  p.  15;  c/.  Salic  Law,  tit.  XLI, 
§6. 

155 


§  3<)el  THE  MIDDLE  AGES  [Part  I,  Title  II 

out,  the  master  could  no  ]ono;er  be  considered  as  the  author  of  the 
ofl'ense  committed  by  liis  animal,  not  even  as  its  represcntativ^e ; 
for  him  it  could  be  only  a  matter  of  liability  to  damages  for  the 
harm  done.  But  as  ])unishments  had  become,  in  general,  much 
more  severe  than  in  the  previous  period,  and  in  many  instance» 
the  death  penalty  had  even  replaced  heavy  fines,  these  penalties 
did  not  seem  too  rigorous  when  applied  to  the  present  class  of 
cases.  This  would  explain  the  maintenance  and  even  the  new  im- 
position of  very  heavy  fines.  For  example,  the  Custom  of  Tou- 
raine-Anjou  imposes  a  fine  of  a  hundred  sous  and  one  denier,  called 
"  relief  d'homme  ",  upon  the  owner  of  a  domestic  animal  which  has 
caused  the  death  of  a  person  ;  ^^  and  the  same  Custom  of  Touraine- 
Anjou  even  pronounces  the  death-penalty  against  the  owner  if 
he  knew  the  vicious  trait  of  his  beast.  These  are  evidently  meas- 
ures l)orrowed  from  the  law  of  the  preceding  epoch.  Beaumanoir 
likewise  imposes  the  enormous  fine  of  sixty  sous  upon  the  owner  of 
an  animal  doing  damage  to  the  fields. 

Roman  law  had  allowed  the  owner  to  avoid  prosecution  by  mak- 
ing a  noxal  surrender  of  the  animal.  But,  with  the  Romans,  the 
owner  was  prosecuted  rather  as  the  person  necessarily  liable  for 
the  animal's  act  than  by  virtue  of  his  personal  responsibility.  Our 
old  Custumals  did  not  grasp  this  distinction.  In  general,  they 
do  not  speak  of  noxal  surrender,  and  their  silence  impliedly 
excludes  it.  Under  the  influence  of  Roman  law,  certain  Custumals 
indeed  admitted  it,  but  with  a  notion  of  responsibility  which  was 
foreign  to  Roman  law.  Thus,  according  to  Liger,  the  owner  can 
make  a  noxal  surrender  if  he  has  been  careful  and  has  taken  all 
needful  precautions  to  prevent  the  animal  from  doing  harm ;  if 
not,  the  noxal  surrender  is  not  allowable,  and  the  person  injured 
must  be  recompensed.  Thus,  in  the  first  alternative  they  admit  a 
responsibility  limited  by  the  value  of  the  animal ;  in  the  second, 
the  responsibility  is  unlimited,  or  rather,  there  is  a  true  personal 
fault  on  the  part  of  the  owner.^^ 

Evil  intent  alone  does  not  constitute  a  crime ;    the  crime  must 

"  "Coutume  de  Touraine-Anjou",  §114;  c/.  "  Etablissements  de 
Saint  Louis",  book  I,  chap.  125,  ed.  Viollet,  Vol.  II,  p.  233. 

**  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  no.  421,  Vol.  II, 
p.  163.  Cf.  "Li\Te  des  droiz  et  des  eommandemens".  Vol.  I,  nos.  119 
and  228.  We  note  that  the  Salic  Law  had  already  allowed  in  one  case 
a  kind  of  noxal  surrender.  "Loi  salique",  tit.  XXXVI.  Viollet,  "Etab- 
lissements de  Saint  Louis",  Vol.  I,  p.  234,  believes  that  noxal  surrender 
did  not  find  a  place  in  the  law  of  Anjou.  He  is  right  for  the  first  part  of 
our  period,  but  not  for  the  second,  as  we  have  just  seen ;  for  the  noxal 
surrender  entered  it  under  the  influence  of  Roman  law. 

156 


Chapter  VI]  fran'CE  in  the  later  middle  ages  [§  39e 

be  committed  or  at  least  attempted.  But  one  may  search  in  vain 
in  the  Custumals  of  the  ^Middle  Ages  for  a  theory  of  attempt ; 
the  texts  of  this  period  have  no  definite  conception  of  the  attempt ; 
they  dwell  only  on  the  accomplished  act,  without  inquiring  whether 
the  offender  had  purposed  to  commit  a  greater  ofl'ense.  For  in- 
stance, one  who  purposed  to  commit  murder  but  succeeded  only 
in  wounding  his  victim  without  endangering  his  life,  is  prosecuted 
for  blows  and  wounds,  but  not  for  attempted  murder.  With 
greater  reason,  the  mere  planning  of  a  crime  is  held  not  equivalent 
to  committing  it ;  one  who  admits  in  court  that  he  was  going  to 
find  a  man  in  order  to  kill  him  will  not  be  punished  for  murder  ;  for 
"  the  intent  to  kill,  without  the  accomplished  fact ",  is  not  a  crime.'^'^ 
Such,  indeed,  had  been  the  principle  of  the  Germanic  folk-laws.^^ 

No  one  could  be  put  to  trial  a  second  time  for  the  same  offense  ; 
in  this  respect  Roman  law  had  exercised  a  beneficial  influence,  and 
had  helped  to  fix  clearly  principles  which  had  remained  rather 
obscure  during  the  preceding  period.^'- 

There  were  numerous  precautions  to  prevent  ill-founded  crimi- 
nal prosecutions ;  a  severe  penalty  threatened  the  one  who  falsel\' 
lodged  a  criminal  charge."*^  A  crime  must  be  fully  proved  ;  in  case 
of  doubt,  the  accused  was  to  be  acquitted.  Confession  seemed 
to  be  the  best  proof.  The  rule  finally  evolved  was,  that  a  confes- 
sion was  necessary,  before  the  court  might  lawfully  pronounce 
the  death  penalty.'*^  But  this  principle  led  finally  to  disastrous  re- 
sults ;  for,  as  is  well  known,  it  developed  the  free  use  of  torture. 
In  some  instances,  when  the  rule  forbad  torture,  because  the  ac- 
cused had  consented  to  submit  to  interrogation,  and  this  did  not 
sufficiently  prove  the  crime,  they  nevertheless  pronounced  a  pro\i- 
sional  and  fictitious  sentence  against  the  accused  (though  he  should 
have  been  acquitted),  and  he  was  taken  to  the  place  of  execution, 
in  the  hope  that  this  sham  proceeding  would  lead  him  to  a  confes- 
sion ;  they  must  after  all  release  him,  if  he  still  persisted  in  his 
denials.'^ 

"  "Etablissements  de  Saint  Louis",  book  I,  chap.  40,  Vol.  II,  p.  öö. 

"'See  Wilda,  "Das  Strafrecht  der  Germanen."  But  the  criminal 
attempt  seems  to  have  been  classed  with  the  accomplished  crime. 

"See,  for  example,  "Anciennes  coutumes  d'Anjou  ft  du  Maine". 
F,  no.  898,  Vol.  11,  p.  319,  where  Roman  law  is  e.\])li('itly  cited;  "  Liyre 
des  droiz  et  des  commandemens".  Vol.  1,  no.  22.'),  and  vol.  II.  no.  3()0. 

••^  See,  for  example,  "Livre  des  droiz  et  des  commandemens",  Vol.  II, 
no.  322. 

^"  "Livre  des  droiz  et  des  commandemens".  Vol.  II,  nos.  322,  323,  644. 

^*  Sometimes,  however,  it  was  permitted  to  banish  him  from  the 
territory  which  came  under  the  jurisdiction  of  the  court  where  he  had 

157 


§  39c]  THE    MIDDLE    AGES  [Part  I,  TiTLE  II 

The  act  and  the  evil  intent  together  made  crime ;  yet  the  guilt 
was  not  the  same  in  all  cases ;  it  varied  widely  according  to  the 
circumstances.  Our  modern  codes  recognize  excuses,  extenuat- 
ing circumstances,  and  aggravating  circumstances.  The  Custu- 
mals  mention  certain  excuses.  But  we  do  not  find  in  them  any 
really  logical  and  scientific  theory  for  extenuating  and  aggravating 
circumstances.  One  can  scarcely  detect  even  a  rough  outline  of 
such  a  theory  in  Bouteiller ;  and  he  is  influenced  by  Roman  law, 
more  or  less  modified.  Thus,  he  says,  the  crime  will  be  more 
serious,  sometimes  because  of  the  status  of  the  victim,  for  example, 
a  churchman,  an  officer  of  the  king,  a  woman,  or  a  girl ;  sometimes 
on  account  of  the  place,  as  when  committed  in  a  church,  in  a  hall 
of  justice,  in  the  lord's  castle,  at  the  fair  or  in  the  market  place ; 
and  again  by  reason  of  the  time,  for  example,  when  committed  on 
a  great  Church  festival,  such  as  Easter,  Pentecost,  Christmas ;  still 
farther  by  reason  of  the  rank  of  the  criminal,  when  in  a  high  station 
of  life,  or  by  reason  of  the  importance  of  the  harm  done ;  and, 
finally,  premeditation  and  habitual  wrongdoing  are  also  aggra- 
vating circumstances.  As  the  most  extenuating  circumstance  for 
homicide,  Bouteiller  ranks  the  heedlessness  of  the  offender ;  in 
this  case  the  punishment  ought  to  be  more  lenient,  though  there 
should  be  no  acquittal.^®  The  truth  is  that  judges  enjoyed  an 
absolutely  discretionary  power  in  the  application  of  punishments ; 
and  under  such  a  system,  it  was  unnecessary  to  indicate  in  precise 
and  fixed  terms  the  aggravating  or  the  extenuating  circumstances. 

There  were,  however,  certain  excuses  which  bound  the  judge 
to  acquit,  or  at  least  to  inflict  a  less  severe  punishment.  Beauma- 
noir  conceded  that  children  may  rightfully  rob  their  parents  to  get 
sustenance,  i.e.,  to  buy  food,  though  for  no  other  reason;  in  that 
case,  therefore,  there  was  no  crime.^'^  Likewise  the  texts  allowed 
the  inmates  of  a  house  to  kill  with  impunity  the  night  thief  ."'^  and 
the  husband  to  put  to  death  his  wife  and  her  accomplice  caught 
in  the  act  of  adultery .^^     Beaumanoir  justifies  a  homicide  done 

been  arraigned.  See  Tanon,  "Registre  criminel  de  Saint  INIartin-des- 
Champs",  pp.  xeix  and  228;  [and  Esmein,  "History  of  Continental 
Criminal  Procedure",  Vol.  V  of  the  present  Series.  —  Ed.]. 

"  Bouteiller,  "Somme  rural",  book  I,  tit.  29,  p.  182.  According  to 
an  ordinance  of  1.356,  the  city  of  Tournai  had  the  privilege  of  asjdums  for 
involuntary  murderers;    Isamberi,  Vol.  IV,  p.  795. 

"  Beaumanoir,  chap.  31,  no.  12,  Vol.  I,  p.  462.  At  this  point  Beau- 
manoir (no.  13)  remarks  that  theft  implies  criminal  intent. 

^^  "Anciennes  eoutumes  d'Anjou  et  du  Maine",  F,  no.  393,  Vol.  II, 
p.  155;  "Li\Te  des  droiz  et  des  commandemens",  Vol.  II,  no.  903. 

*^  Beaumanoir,  chap.  30,  nos.  102  to  104,  Vol.  I,  p.  455;  "Anciennes 

158 


Chapter  VI]  FRANCE    IN   THE   LATER   MIDDLE   AGES  [§  39e 

by  a  man  who  has  been  insulted  with    violence   and   extreme 
outrage. '''' 

Crimes  being  personal  (as  the  old  Custumals  say),  they  must, 
from  the  point  of  view  of  penal  justice,  bring  punishment 
against  their  authors  only.  Suppose  that  a  band  of  criminals 
has  been  caught,  says  Beaumanoir ;  the  law  must  punish 
only  those  against  whom  there  is  good  proof.'"'  An  old  Nor- 
man treatise  tells  us  that  a  certain  bailiff  of  the  Duke,  as 
soon  as  he  learned  of  a  crime,  used  to  arrest  the  parents  of  the 
suspect ;  but  the  seneschal  of  Normandy  suppressed  this  abuse, 
and  warned  the  bailiff'  that  he  could  use  such  harshness  only  against 
the  offender  and  his  accomplices,  that  is,  his  partners  in  the  crime.'^- 
It  followed,  still  more  plainly,  that  the  heirs  of  the  oft'ender  ^\■cre 
not  to  be  prosecuted  in  his  stead.""^  No  clear  distinction,  howe\er, 
is  made  at  this  epoch  between  joint  principal  and  accomplices. 
In  general,  they  are  all  placed  on  the  same  level  and  subjected  to 
the  same  punishment,  as  if  each  had  himself  alone  committed  the 
crime.^^  This  principle  is  applied  even  in  the  case  where  the 
penalty  incurred  is  a  fine ;  in  other  words,  each  guilty  party  in  the 
same  crime  must  be  condemned  to  pay  the  whole  fine."  But  wlien 
it  is  a  matter  of  corporal  punishment,  it  is  easy  to  see  that  the 
judge's  power  to  inflict  a  discretionary  punishment  would  allow 
him  to  punish  very  differently  according  as  the  participants  played 
a  more  or  less  important  part,  principal  or  accessory.  Still,  there 
are  cases  where  the  Custumals  class  with  the  author  of  the  (Time 
persons  who  to-day  would  no  longer  be  treated  with  that  rigorous 
severity ;    and  thus  it  is  natural  to  find  the  Custumals  placing  on 

coutumes  d'Anjou  et  du  Maine",  F,  no.  1317,  Vol.  II,  p.  488;    "Livre 
des  droiz  et  des  commandemens".  Vol.  II,  no.  820. 

50  Beaumanoir,  chap.  .30,  no.  101,  Vol.  I,  p.  454. 

5'  See  in  Beaumanoir  the  curious  story  of  the  pilgrim,  chap.  G9,  no.  21, 
Vol.  II,  p.  494. 

"  "Etablissements,  coutumes,  assises  et  arret  de  l'Echiquier  de  Nor- 
mandie",  ed.  Muritier,  pp.  44  and  45. 

53  "Anciennes  coutumes  d'Anjou  et  du  IMaine",  F,  no.  519,  Vol.  II. 
p.  198. 

'^*  Bouteiller  seems  to  lay  down  a  certain  theory  of  complicity,  but  it 
is  only  in  appearance,  for  he  limits  himself  to  saying  that  one  must  dis- 
tinguish those  who  have  participated  in  the  crime  witii  full  knowleilge 
of  the  fact,  from  those  who  were  ignorant  of  the  plan  or  the  doing  of  the 
crime,  although  the  latter  have  taken  a  certain  part  in  it ;  as,  for  e.\ani|)Ie. 
if  when  a  theft  was  being  committed  they  were  on  the  watch  liciieving  in 
good  faith  that  they  were  merely  waiting  for  some  one;  in  lh(>  former 
case  alone  are  they  guilty.  However,  even  this  jurist  makes  no  <lis- 
tinction  between  joint  principals  and  accomplices:  see  "Somme  rural", 
book  I.  tit.  29,  and  l)ook  11,  tit.  40,  edition  of  1<)21,  pp.  310  and  1490. 

^5  Beaumanoir,  chap.  30,  no.  92,  \o\.  I,  p.  447. 

159 


§  ;i9e]  THE  MIDDLE  AGES  [Part  I,  Title  II 

the  same  level  tlie  author  of  the  erime  and  one  who  has  [)lanne(l 
or  instigated,  or  ordered  it.''^  But  to  hold  guilty  of  homicide  one 
who,  when  able  to  rescue  another  from  danger,  failed  to  go  to  his 
aid,'"  seems  pressing  this  principle  rather  far. 

In  general,  the  Custumals  are  apt  to  class  with  the  author  of  the 
crime  its  concealer,  especially  in  case  of  theft.  This  may  be  ac- 
counted for  by  the  reprobation  always  attached  to  receivers  of 
stolen  goods ;  there  is  good  sense  in  the  old  saying  :  "  the  receiver 
is  worse  than  the  thief."  ''^  Innkeepers,  though  not  actually  classed 
with  thieves,  were  naturally  held  responsible  for  the  thefts  com- 
mitted on  their  premises,  or  by  their  servants  and  their  lodgers. 
But  that  was  a  matter  wholly  within  their  personal  control  and  they 
could,  in  certain  cases,  avoid  liability.''^ 

Apart  from  theft,  connivance  by  concealment  could  hardly  be 
a  crime,  unless  it  involved  concealing  the  criminal's  person.  But 
no  one  ever  thought  of  classing  w^ith  the  criminal  the  man  who  re- 
ceived him  under  his  roof.  It  is  true,  some  texts  punish  with  death 
the  person  who,  w  ith  full  knowledge  of  the  crime,  gives  shelter  to  a 
murderer,  unless  he  be  a  relative.®*^  But  this  principle  does  not 
seem  to  have  been  generally  accepted ;  in  most  cases  a  separate 
penalty  w^as  applicable  to  him  who  sheltered  a  criminal. ^^ 

^^  Beaumanoir,  chap.  31,  nos.  9  and  11,  Vol.  I,  p.  461;  "Livre  des 
droiz  et  des  commandemens".  Vol.  II,  no.  229. 

"  "Livre  des  droiz  et  des  commandemens".  Vol.  II,  no.  362.  Like- 
wise we  read  in  the  "Livre  de  jostice  et  de  plet",  p.  307:  "And  if  one 
sees  another  commit  murder,  kill,  desert,  betray,  rob  and  maim,  and 
does  not  raise  a  hue  and  cry,  or  does  not  do  his  best  to  capture  him, 
what  will  be  the  result?  It  is  said  that  he  must  seek  pardon  of  the  king. 
For  it  is  evident  that  when  he  does  not  do  his  best  to  capture  or  to  raise 
a  hue  and  cry,  he  consents  to  the  deed.  Now  if  one  asks :  Am  I  boimd 
to  capture  or  to  raise  a  hue  and  cry  in  case  of  other  offenses,  the  answer 
is  yes,  in  case  of  highway  robbery,  demolishing  a  house,  and  similar 
serious  cases,  or  cases  where  loss  of  life  or  limb  is  entailed.  In  other 
cases  one  is  not  so  bound,  except  in  case  of  injury  to  himself  or  to  his 
people;   for  these  one  must  help  in  good  faith." 

^*  "Capitulaire  d'Ansegise",  book  III,  chap.  23;  Pertz,  "Leges", 
Vol.  I,  p.  303;  "Livre  de  jostice  et  de  plet",  p.  281;  cf.  Viollet,  "Etab- 
lissements de  Saint  Louis",  Vol.  I,  p.  251;  Beaumanoir,  chap.  31,  nos. 
7  and  8,  Vol.  I,  p.  460  and  chap.  69,  no.  19,  Vol.  II,  p.  493;  "Anciennes 
coutumes  d'Anjou  et  du  Maine",  B,  no.  35,  Vol.  I,  p.  83;  C,  no.  29,  Vol. 
I,  p.  219 ;  F,  nos.  1354  and  1355,  Vol.  II,  p.  499. 

""  See  in  this  respect,  "Anciennes  coutumes  d'Anjou  et  du  Maine", 
F,  nos.  602  to  615,  Vol.  II,  p.  222;  K,  nos.  217  to  219,  Vol.  IV,  p.  108; 
N,  nos.  39,  40,  42,  Vol.  IV,  p.  528. 

•^^  "Livre  des  droiz  et  des  commandemens",  no.  348,  Vol.  II,  p.  20. 

•^'  Some  Letters  of  Louis  VIII,  of  April,  1226,  hold  that  he  who  gives 
refuge  to  a  heretic  is  deprived  of  the  right  to  be  a  witness  before  the  law, 
to  receive  honors,  to  make  his  will,  and  to  inherit  property.  See  also 
Articles  2  and  3  of  the  April  Ordinance  of  1228  in  Isambert,  Vol.  I,  pp.  227 
and  230. 

160 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  39/ 

The  principle  that  (Time  was  essentially  personal  had  some  limita- 
tions. Whenever  a  criminal  committed  suicide  to  escape  prosecu- 
tion, they  tried  him  and  inflicted  the  penalty  on  his  corpse  ;  so  too, 
when  the  culprit  had  been  killed  while  trying  to  escape  justice. 
Even  in  the  1500  s,  Ayrault  in  his  book,  "  De  I'ordre,  formalite 
et  instruction  judiciare  ",  still  maintained  these  doctrines ;  sanc- 
tioning the  prosecution  of  the  corpse  (even  though  not  dying  by 
his  own  hand),  for  those  guilty  of  treason,  parricide,  or  other 
heinous  crime.  The  crime  of  treason  was  visited  even  on  the 
traitor's  posterity ;  the  penalty  of  confiscation  for  treason  was 
a  serious  injustice  to  the  common  welfare,  in  that  it  was  fre- 
quently imposed,  and  fell  upon  the  family  of  the  offender.  But 
these  were  the  only  exceptions  to  the  principle  of  personal 
guilt;  public  disapproval  checked  the  occasional  attempts  to 
extend  them.^- 

§  .']9/.  Specific  Crimes.  —  In  primitive  legal  systems  a  crime 
is  regarded  as  more  serious  when  the  offender  is  taken  in  the  act 
than  when  he  is  not ;  it  provokes  in  the  victim  a  keener  wrath  and 
hence  a  more  lawful  one.  The  right  of  \engenance,  too,  is  often 
found  persisting  for  a  longer  period  under  these  circumstances; 
when  it  disa])peared  it  was  replaced  at  first  by  a  particularly  heavy 
pecuniary  composition,  then  by  a  severer  punishment  than  the 
usual  one.  These  peculiarities  of  the  Frankish  epoch  had  generally 
disappeared  by  the  time  of  the  Middle  Ages ;  but  there  still  re- 
mained a  few  traces,  especially  in  theft.  Taking  a  man  in  the  act 
of  stealing  or  of  committing  adultery  permits  the  killing  of  the 
offender.^  Any  one  has  the  right  to  arrest  an  offender,  and  to 
bring  him  before  the  court,  when  caught  in  the  commission  of  any 
crime  whatsoever.^  At  times,  this  right  even  becomes  a  duty.  In 
Paris,  an  ordinance  of  Philip  the  Bold,  of  1273,  enjoined  upon  the 
neighbors,  for  certain  kinds  of  oft'enders  taken  in  the  act,  to  ar- 

ß2  On  March  2,  1326,  Charles  II,  King  of  Navarre,  was  accused,  before 
Parliament  in  the  presence  of  the  king  and  the  peers,  of  th(>  crime  of 
"lese  majcste",  although  he  had  been  dead  since  the  first  of  .January  of 
the  same  year.  During  the  trial  the  court  affect (>d  (o  l)e  ignorant  of 
this  circumstance;  and  when  the  case  was  put  to  tiie  judges,  the  king's 
lawyer  maintained  with  faltering  words  that  according  to  feudal  law 
it  was  permissible  to  continue  ])roceediiigs  in  case  of  felony  even  after 
the  death  of  the  vassal.  But  finally,  in  spite  of  their  desire  to  confiscate 
the  lands  of  the  deceased,  the  cliarge  was  allowed  to  lapse.  See  Isamberl, 
Vol.  VI,  p.  620. 

1  Beaumanoir,  chap.  .30,  nos.  102  (7  seq.^  Vol.  I,  p.  4.).);  "Livre  des 
droiz  et  des  commandemens",  Vol.  II,  no.  .'S.SO. 

2  Glasson,  "Clameur  de  haro",  may  be  referred  to;  here  it  is  enough 
to  mention  the  point. 

161 


§  39/]  THE   MIDDLE   AGES  [Part  1,  Title  II 

rest  them  or  at  least  to  raise  a  hue  and  cry."''  To  do  s{)eedy  justice, 
juristliction  was  given  not  only  to  the  judge  of  the  lord  under  whom 
the  offender  lived,  but  also  to  the  judge  of  the  place  where  the  crime 
had  been  committed,  as  well  as  to  the  one  upon  whose  territory 
the  ofl'ender  had  been  arrested."*  ^Moreover,  since  the  ofl'ender 
was  taken  in  the  act,  the  crime  was  by  that  very  fact  sufficiently 
proved.^  But,  save  these  differences,  the  distinction  between 
crimes  when  the  offender  is  or  is  not  taken  in  the  act,  had  at  this 
period  lost  all  practical  usefulness;  the  jurists  prefer  a  different 
point  of  view. 

Beaumanoir  tells  us  that  crimes  are  great,  medium,  or  small, 
according  to  their  gravity.^  Among  the  first  he  puts  expecially 
murder,  homicide,  treason,  i)oisoning,  suicide,  rape,  arson,  certain 
thefts,  heresy,  and  counterfeiting.  Batteries  and  wounds  of  all 
kinds,  false  witness,  petty  thefts,  insults,  contempt  of  court,  dis- 
placement of  land-marks,  violation  of  seizin,  disobedience  of  police 
measures  taken  by  the  lord,  violence  against  the  property  or  pos- 
session of  another,  and  delayed  pajTnent  of  certain  rents,  —  these 
were  medium  or  even  petty  crimes.  The  other  Custumals  contain 
analogous  distinctions,  except  for  some  differences  in  details. 
There  is,  however,  a  great  difference  between  the  classification  of 
Beaumanoir  and  that  of  Bouteiller.  The  former  does  not  lay  any 
stress  on  the  kind  of  punishment ;  he  classifies  crimes  from  the  point 
of  view  of  their  gravity  in  themselves.  The  latter  terms  capital 
crimes  those  punishable  by  death  or  some  other  punishment 
classed  with  death,  such  as  banishment,  and  non-capital  crimes 
those  for  which  the  regional  Custom  inflicts  a  less  severe  punish- 
ment, such  as  pillory,  brand,  or  fine.  Thus,  for  Bouteiller,  capital 
crimes  include  "  lese  majeste  "  and  other  treason,  murder  and 
homicide,  rape  and  abduction,  certain  forms  of  violence,  sacrilege, 
heresy,  sedition,  conspiracies,  insults  to  the  king,  witchcraft, 
corruption  in  magistrates,  sodomy,  blasphemy,  brigandage,  and  the 

'  Isambert,  Vol.  II,  p.  650. 

*  Beaumanoir,  chap.  30,  nos.  84  and  8.5,  Vol.  I,  p.  442.  Later,  thej' 
extended  these  rules  of  jurisdiction  even  in  cases  when  the  criminal  was 
not  taken  in  the  act. 

^  Beaumanoir,  chap.  39,  no.  10  and  chap.  61,  no.  2,  Vol.  II.  pp.  95  and 
376;  "Assises  de  Jerusalem,  cour  des  Bourgeois",  chapters  203,  208,  209, 
251;  Charondas,  "Notes  sur  le  Grand  Coutumier",  p.  117.  In  Beau- 
manoir's  time,  whenever  the  judge  could  not  satisfy  himself  that  the 
person  charged  was  either  a  notorious  offender  or  taken  in  the  act.  he 
was  obliged,  if  no  one  appeared  and  complained,  to  release  the  accused 
at  the  end  of  the  customary  period  allowed  for  freemen  to  appear  in  court. 
See  Beaumanoir,  chap.  30,  no.  90,  Vol.  I,  p.  446. 

^  Beaumanoir,  chap.  30,  Vol.  I,  pp.  410  et  seq. 

162 


Chapter  VI]  FRANCE    IN    THE    LATER    MIDDLE    AGES  [§  39/ 

more  serious  forms  of  larceny  ;  ainoiif^  non-capital  crimes  he  i)laces 
insults,  batteries  and  wounds,  carrying  of  weapons,  \iolations  of 
the  game  and  fish  laws,  etc. 

(v  Of  all  crimes  the  gravest  of  course  is  "  lese  majeste."  It  is  not 
found  in  the  early  Custumals.  It  appears  only  at  the  end  of  the 
period,  as  an  effect  of  the  revival  of  Roman  law.  Bouteiller 
defines  "  lese  majeste  "  as  meaning  all  attemi)ts  against  "  the 
noble  majesty  of  the  king."  Xo  one  but  the  king  himself  can 
.sit  in  judgment  on  it  within  the  kingdom,  —  whatever  be  the 
station  of  the  accused,  even  a  churchman  of  the  highest  rank.  The 
trial  never  begins  by  inquest  of  the  country ;  a  special  procedure 
is  required  ;  if  the  proof  is  not  clear,  torture  may  be  used  upon  the 
accuser  as  well  as  the  accused ;  if  the  former  is  convicted  of  false 
complaint,  he  incurs  the  penalty  that  the  accused  would  have 
suffered.  He  who  advises  only  is  equally  guilty  with  him  who 
acts  overtly  in  such  a  design.  Whoever  has  knowledge  of  the 
<lesign  must  immediately  reveal  it,  on  pain  of  sharing  in  the  guilt. 
There  is  no  appeal.  The  culprit  is  quartered  or  flayed  alive  ;  all 
his  goods  are  forfeited  to  the  lord  or  the  king.  The  offender's 
children  are  to  be  "  exiled,  there  to  suffer  a  merited  death ; 
and  the  reason  is  that  the  crime  of  treason  is  so  horrible  and 
detestable  that  by  its  very  nature  it  contaminates  the  oil'sj^ring 
of  the  offender ;  and  therefore  the  roots  and  the  trunk  must 
be  destroyed."  If  the  prince  spares  the  lives  of  the  children,  the 
latter  are  none  the  less  branded  with  infamy  for  the  rest  of 
their  li\'es,  stricken  with  civil  death ;  the  sole  exception  is  that 
daughters  are  entitled  to  a  fourth  of  their  mother's  fortune.  All 
these  rules  were  borrowed  from  the  imperial  Roman  law  ;  a  glance 
at  the  title  of  the  Code  "  Ad  legem  Juliam  majestatis  "  (IX,  S,  1) 
will  show  its  origin. ^^ 

The  crime  of  "  prodition",  or  "  treason",  is  related  to  that  of 
"lese  majeste  "  ;  it  includes  disloyalty  to  the  feudal  lord,  or  to  some 
other  person.  In  the  former  case,  it  is  always  a  capital  crime  ;  in 
the  latter,  only  when  death  results.^  In  Beaumanoir's  time, 
consi)iracies  and  plots,  it  seems,  were  freciuent,  especially  b>- 
townspeople  against  their  overlords.  If  the  lord  learns  of  it 
before  the  plot  is  carried  out,  he  may  have  the  leaders  hanged, 

">  Bouteiller,  "Somme  rural",  book  T,  tit.  39,  pp.  47S  and  479.  Tho 
"Livre  des  droiz  et  des  commandemens",  no.  7(32,  Vol.  II,  p.  195,  inf(jrnis 
us  that  the  man  guilty  of  "lese  majeste"  ean  never  lodge  au  appeal. 

*  Bouteiller,  "Somme  rural",  book  1,  tit.  39. 

163 


§  30/]  THE  MIDDLE  AGES  [Paut  I,  Title  II 

and  may  imprison  for  a  long  term  the  other  participants.  Beau- 
manoir  speaks  of  a  long  term  of  imj)risonment  as  the  penalty  for 
those  who  make  combinations  and  declare  strikes.^  Bouteiller 
also  deals  with  crime  of  combination  which  he  calls  "  monopoly  " 
and  considers  as  a  case  of  "  lese  majeste."^"  In  this  class  he  puts 
also  sedition,  which  consists  in  revolting  against  one's  lord,  con- 
spiring against  the  prince's  ordinance  and  edict  to  overthrf)w  the 
government,  and  dealing  with  enemies  and  iiifidels.^^  With  this 
crime  of  treason  against  the  king  or  the  lord,  some  Custumals  class 
highway  robbery  and  the  abduction  of  girls ;  so  that  in  these  cases 
the  offender  has  no  appeal  from  the  death  penalty. ^^ 

The  foregoing  may  be  classed  as  crimes  against  society  or  its 
representatives.  Passing  to  crimes  against  individuals,  we  find 
them  of  variant  degrees,  but  alike  resulting  in  some  injury  to  a 
person,  to  a  family,  or  to  property. 

Of  course  the  most  serious  offense  against  the  person  is  m.urder 
("  assassinat  "),  that  is,  homicide  ("  meurtre  ")  with  premedita- 
tion, in  whatever  manner,  by  blows  causing  death,  by  poisoning,  etc. 
The  Germanic  folk-laws  had  not  distinguished  clearly  murder  from 
involuntary  homicide ;  their  distinction  was  rather  between  the 
killing  done  in  public  or  in  secret.  In  the  former  case  they  in- 
flicted the  ordinary  punishments,  whether  the  killing  were  ^'ülun- 
tary  or  not.  The  main  concern  was  to  give  some  satisfaction 
to  the  family's  demand  for  vengeance ;  and  as  secret  homicide 
rendered  this  vengeance  more  difficult,  it  was  considered  a  crime 
especially  grave. ^^  During  the  later  INIiddle  Ages  these  old  notions 
survive  in  the  writings  of  some  of  the  jurists.^'*  But  gradually  there 
develops  a  clearer  idea  of  the  nature  of  the  crime.  Tlie  term 
"  guet-apens  "  indicates  murder,  that  is,  killing  with  premedita- 
tion, rather  than  secret  homicide.  But  since  these  two  circum- 
stances are  most  often  found  together,  i.e.  since  murder  takes  place 
almost  always  in  secret,  there  is  still,  for  a  while,  some  difficulty 
in  distinguishing  one  from  the  other.  They  finally  succeed  in 
defining  homicide  ("  meurtre  ")  as  the  act  of  killing  one's  fellow- 

5  Beaumanoir,  chap.  30,  nos.  62  and  63,  Vol.  I,  p.  430. 

10  Bouteiller,  "Somme  rural",  book  I,  tit.  28,  p.  290. 

"  Bouteiller,  ibid.  Jacques  Coeur  (as  is  well  known)  was  prosecuted, 
tortured,  and  sentenced  for  having  dealings  with  infidels.  See  Clement, 
"Histoire  de  Jacques  Coeur",  p.  279. 

1^  "Li\Te  des  droiz  et  des  commandemens",  no.  762,  Vol.  II,  p.  195. 

IS  See  our  Vol.  Ill,  p.  560. 

'^  See,  for  example,  Glanvill,  book  XIV,  chap.  3;  "Li\'Te  de  jostice 
et  deplet",  p.  290. 

164 


Chapter  VI]  FRANCE    IN    THE    LATER   MIDDLE    AGES  [§  39/ 

man  in  ambush  ("  guet-apens  "),  that  is,  with  prenu'ditation. 
This  crime  corresponds  with  what  we  call  to-day  murder.''  Even 
Bouteiller  does  not  yet  distinguish  clearly  murder  from  unpremedi- 
tated homicide.  He  recognizes  that  homicide  by  carelessness 
ought  not  to  l)e  punished,  but  adds  immediately  that  even  in  that 
case  the  death  penalty  is  incurred  unless  the  prince  grants  pardon. ^^ 
Beaumanoir  terms  it  a  homicide  when  mere  blows  and  wounds 
result  in  death  within  forty  days.^^  Usually,  homicide  is  the  term 
applicable  to  any  killing  which  becomes  notable  because  of  the 
means  employed  or  of  the  rank  of  the  victim.  Poisoning,  for  ex- 
ample, was  always  and  rightly  considered  an  especially  odious 
crime.^^  Murder  is  especially  heinous  if  committed  by  a  woman 
against  her  husband/^  by  a  son  against  his  father,  or  by  a  father 
against  his  son.  The  old  Custumals  remind  us  of  the  well-known 
Roman  punishment,  which  consisted  in  putting  the  parricide  into 
a  leather  sack  with  a  rooster,  a  dog,  a  monkey,  and  a  serpent, 
to  be  thus  thrown  into  the  sea  or  into  a  river,  so  that  he  might 
lose  at  the  same  time  the  sky,  the  air,  and  the  earth.-" 

INIere  batteries  and  wounds  did  not  fall  within  the  category  of 
capital  crimes.  But  one  who  assaulted  a  pregnant  woman  was  con- 
demned to  be  hanged.  If  the  infant  died  in  its  mother's  womb  as 
a  result  of  this  ill-treatment  (and  of  course,  if  the  mother  was 
killed  outright),  the  crime  was  termed  "  encis."  -^     This  crime  of 

'*  "Li\Te  de  jostiee  et  de  plet",  pp.  2SS  and  289;  "Anciennes  cou- 
tumes  d'Anjou  ot  du  Maine",  E,  nos.  76  and  77,  Vol.  I,  p.  429;  F,  nos. 
1321  ct  seq.,  Vol.  II,  p.  489  ;  F,  no.  1369,  Vol.  II,  p.  503  ;  I,  no.  96,  Vol.  Ill, 
p.  258 ;   L,  no.  288,  Vol.  IV,  p.  264. 

'^  Bouteiller,  "Somme  rural",  ed.  1621,  book  II,  tit.  40,  pp.  148S  and 
1493. 

'^  Benumanoir,  chap.  69,  no.  22,  Vol.  11,  p.  95.  Notice  this  period  of 
forty  days,  which  is  certainly  of  very  old  Germanic  origin. 

^*  "Livre  de  jostiee  et  de  plet",  p.  284.  On  this  point  one  sometimes 
finds  cited  the  "Livre  des  droiz  et  des  commandemens",  no.  823;  hut 
this  text  deals  with  enchanters'  philters  rather  than  with  poi.sonings 
properly  speaking;  the  offender  must  nevertheless  pay  with  his  life  if 
the  philter  has  caused  death;  otherwise,  the  judge  may  mitigate  the 
penalty.  On  the  poisoning  of  wells,  see  "Anciennes  coutumes  d'Anjou 
et  du  Maine",  E,  no.  87,  Vol.  I,  p.  435. 

'"  Beaumnnoir,  chap.  69,  no.  1(),  Vol.  II,  p.  491. 

2"  L.  9,  "De  lege.Pompeia  de  i)arrici(liis",  48.  9.  Enlarging  on  tiiis 
text,  a  decree  of  Hadrian  had  ordaiiud  that  if  tiie  sea  was  not  near  the 
place  where  the  crime  had  l)een  committed,  the  ofF(>nder  was  to  he  thrown 
to  the  wild  beasts.  But  the  latter  form  of  punishment  no  longer  existed 
in  the  Middle  Ages,  and  in  such  (ta.se  the  guilty  num  was  thrown  into  the 
river.  Cf.  "Livre  de  jostiee  et  de  plet",  p.  284;  Bouteiller,  "Somme 
rural",  ed.  1621,  book  II,  tit.  40,  p.  1492. 

=1  See  "Etablissements  de  Saint  Louis",  book  I.  chap.  27;  "  Li\Te  de 
jostiee  et  de  plet",  p.  279;  Bouteiller,  "Somme  rural",  ed.  1()21,  book  II, 
tit.  40,  p.  1488;   "Livre  des  droiz  et  des  commandemens",  no.  251. 

1(35 


§  39/]  THE    MIDDLE   AGES  [Paut  I,  TiTLE  II 

"  (MU'is  "  has  by  some  writers  been  positively  traced  back  to  the 
Salic  Law,  which  in  the  title  "  I)e  via  lacina  "  awards  a  pecuniary 
composition  three  times  heavier  for  a  bhnv  inflicted  on  a  woman 
than  on  a  man.-'-  But  this  text  does  not  even  mention  a  preg- 
nant woman,  and  this  interpretation  seems  questionable ;  it  is 
simpler  to  believe  that,  probably  through  traditional  usages,  a 
special  protection  was  accorded  to  the  unborn  child.  This  protec- 
tion, howe\'er,  was  accorded  only  as  against  a  third  party,  and  not 
as  against  its  parents.  It  is  indeed  astonishing,  at  first  impression, 
to  find  the  regional  Customs  of  that  period  repressing  with  se\'erity 
the  crime  "  encis  "  and  yet  relatively  indulgent  toward  the  crimes 
of  infanticide  and  abortion.  Yet  there  is  here  an  apparent  con- 
tradiction only.  According  to  early  usage,  against  which  the 
Church  struggled  with  difficulty,  the  father  and  the  mother  were 
conceded  a  kind  of  right  of  life  and  death  over  the  child  just  born. 
Amidst  such  traditions,  infanticide  could  not  constitute  a  crim.e. 
The  tradition  was  no  longer  in  force,  it  is  true,  in  the  ^Middle 
Ages,  but  the  influence  of  old  Germanic  regional  customs  pre- 
vailed. Roman  law,  to  be  sure,  decreed  the  death  penalty  for  in- 
fanticide ;  ^^  but  here  it  was  not  followed,  and  ancient  usage  pre- 
^'ailed.  Strange  to  sa}',  the  Church  contributed  in  some  measure 
to  the  survival ;  it  did  indeed  condemn  infanticide  energetically  ; 
but  as  it  never  pronounced  the  death  penalty  for  any  crime,  the 
result  was  that,  whenever  a  woman  was  brought  before  a  church 
court  for  this  offense,  the  sentence  was  only  a  short  imprisonment 
or  even  a  less  severe  penalty.-"^ 

Furthermore,  in  certain  regional  Customs  which  had  remained 
entirely  untouched  by  Roman  law  and  under  the  influence  of  the 
primitive  tradition  allowing  parents  the  right  of  life  or  death,  the 
killing  of  a  child  by  the  father  or  the  mother  was  always  more  or 
less  excused,  whatever  the   age  of   the   child.-^     Naturally,    the 

22  "Loi  salique",  tit.  31. 

2'  Const.  I,  "De  his  qui  parentes  vel  liberos  oecidunt",  9,  17. 

-^  See  Bernard  of  Pauia,  "Summa  decretum",  V,  9,  ed.  Laspeyres,  p. 
219;    Viollcl,  "Etablissements  de  Saint  Louis",  Vol.  I,  p.  250. 

-»  See,  in  this  respect,  the  curious  text  of  chapter  35  of  the  "Tres 
ancien  coutumier  de  Normandie"  (ed.  Tardif,  p.  29;  ed.  Warnkönig 
and  Stein,  p.  15):  "Si  pater  per  infortunium  suum  filium  oeciderit, 
poenitenciam  agat  ab  eeclesia  sumptam,  et  si  inique  eum  oeciderit,  exul 
ibit  a  tota  potestate  ducis.  Uxor  ejus  sequatur  eum  ;  post  vero  decessum 
sponsi  sui  redire  poterit  ad  hereditatem  suam.  Et  quoniam  filius  de 
sanguine  et  visceriljus  patris  exivit,  pater  pro  homicidio  filii  morte  non 
punietur.  Et,  si  inique  filium  murdrierit,  igne  comburatur."  It  is 
curious  that  this  last  clause,  awarding  the  penalty  of  death  by  fire,  is 
not  found  in  the  French  manuscript.      It  was  probably  added  of  special 

166 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  39/ 

Customs   were    extremely    lenient    in   ease   of   infanticide.     The 

"  Etablissements  de  Saint   Louis  ",   under  the  influence  of  the 

Church,  inflict  no  criminal  penalty  on  the  woman  guilty  of  a  first 

infanticide   (though  probably  they  required  her  detention   in  a 

monastery  designated  by  the  Church),  but  in  case  of  a  second 

offense  the  guilty  mother  was  to  be  burned  alive.-®     This  rule  is 

still  recognized,  at  a  later  date,  by  the  "  Li  vre  des  droiz  et  des 

commandemens  ",  which  requires  that  the  mother  guilty  of  a  first 

infanticide  be  delivered  up  to  the  Church,  but  for  a  second  offense 

be  condemned  in  the  secular  tribunals  to  be  burned.-"     Certain 

custumals  of  the  end  of  this  period  show  a  greater  severity ;    the 

woman  is  punished  with  death  even  for  a  first  infanticide  ;   so  also 

the  woman  guilty  of  abortion, — ^an  offense  which  does  not  seem 

to  be  noticed  by  earlier  Custiimals.^^ 

The  least  serious  offenses  against  the  person  are  batteries,  ivounds, 

insults,  and  the  like.     Legal  writers  on  the  customary  law,  notablx' 

Beaumanoir  among  the  earliest,  and  Bouteiller  among  the  latest 

of  our  period,  class  these  offenses  as  medium  or  non-capital  crimes. 

We  find  in  certain  texts  of  the  ^Middle  Ages,  especially  the  oldest, 

some  traces  of  the  old  classifications  of  the  Germanic  folk-laws, 

which  distinguish  between  different  kinds  of  blows  and  wounds 

and  punish  them  according  to  their  gravity.     Thus,  in  the  Custom 

of  Orleans  they  distinguish  as  many  as  three  kinds  of  blows :    one 

which  causes  a  wound  on  the  head,  without,  however,  resulting  in 

death ;    one  which  produces  a  sore  or  causes  the  flowing  of  blood, 

punishable  by  a  fine  of  sixty  sous  ;  and  one  which  results  in  no  sore 

and  no  flowing  of  blood,  punishable  by  a  fine  of  only  five  sous,-* 

The  same  distinctions  are  found  later  in  Bouteiller ;     blows  and 

wounds  are  })unished  by  a  fine  of  sixty  or  of  five  sous  according  to 

whether  they  cause  blood  to  flow  or  not.^°     However,  some  wound- 

ings  were  punished  more  severely,  because  of  their  nature  and  the 

circumstances.     For  example,  instead  of  the  usual  simple  fine,"*' 

purpose,  at  the  period  when,  under  the  influence  of  Roman  law,  the  murder 
of  the  child  by  burning  began  to  be  considered  as  a  horrible  crime. 

-"  "Etablissements  de  Saint  Louis".  Iiook  I,  lit.  :V.).  ed.   Violld,  p.  äö. 

2'  "Livre  des  droiz  et  des  commandemens",  no.  'M\). 

28  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  no.  13GS,  XDl.  11, 
p.  503. 

29  "Livre  de  jostice  et  de  plet",  p.  279;  "Etablissements  de  Saint. 
Louis",  book  II,  chapters  23  and  24. 

3»  Bouteiller,  "Somme  rural",  book  II,  tit.  40.  edition  of  1021.  p.  1474. 

31  "Registre  criminel  de  Saint-Martin-des-Champs",  p.  cvii  ;  "An- 
ciennes coutumes  d'Anjou  et  du  Maine",  F,  nos.  370,  1370,  1398,  1400, 
Vol.  II,  pp.  148,  504,  508,  .')09,  and  I,  no.  120,  Vol.  Ill,  p.  277;  L,  nos. 
319,  322,  Vol.  IV,  pp.  27  and  275. 

107 


§  ;}9/]  THE    MIDDLE    AGES  [Paut  I,  TiTLE  II 

the  death  penalty  or  some  otlier  discretionary  punishment  was  in- 
flicted if  the  victim  died  later  or  sufl'ered  any  mutilation  ;  ■''  when- 
ever the  wound  caused  the  loss  of  a  limb,  the  offender  incurred  the 
penalty  of  like  for  like,  even  in  Bouteiller's  time ;  ^^  in  other  cases 
the  circumstances  would  atteimate  or  even  remove  the  guilt. 
Beaumanoir  puts  the  case  of  a  person  killing  or  maiming  an- 
other in  a  scuffle ;  he  is  guilty,  if  the  victim  belongs  to  the 
party  against  which  he  was  fighting ;  but  it  is  no  crime  if  the 
person  belongs  to  his  own  band ;  the  latter  case  being  evi- 
dently considered  as  a  mere  accident.^"*  Any  other  use  of 
force  against  the  person  was  punished  in  various  ways,  gen- 
erally (being  non-capital)  by  fines ;  e.g.  force  used  to  prevent 
a  person  from  making  his  will.^^ 

Insults  were  ordinarily  treated  like  blows  and  wounds,  —  non- 
capital crimes  punishable  by  fines.  The  various  custumals,  how- 
ever, differ  as  to  details.  Some  distinguish  two  kinds  of  insults, 
treacherous  and  ordinary;  the  former  are  classed  with  blows 
causing  sores,  the  latter  with  blows  not  causing  blood  to  flow ; 
respectively  punished  by  a  heavy  fine  and  a  fine  of  five  sous.'"'® 
The  "  Grand  Coutumier  de  Normandie  "  distinguishes  according 
to  whether  or  not  the  insult  consists  in  charging  an  oft'ense  which, 
if  true,  would  threaten  a  penalty  of  life  or  limb ;  here  the  insult 
is  criminal,  and  is  punishable  by  a  heavy  fine  of  chattels ;  in  the 
other  cases  the  offense  is  a  minor  one.^^  An  insult  to  a  son  or  to 
a  wife  is  deemed  to  have  been  offered  at  the  same  time  to  the 
father  or  to  the  husband  ;  so  that  the  oft'ender  commits  two  oft'enses 
and  incurs  two  fines.^^  Finally,  certain  insults  are  of  special  grav- 
ity on  account  of  the  status  of  the  persons  addressed,  and  are 

'^  "Registre  criminel  de  Saint-Martin-des-Champs",  p.  35;  "An- 
ciennes  eoutumes  d^Anjou  et  du  Maine",  E,  no.  80,  Vol.  I,  p.  432;  I, 
no.  99,  Vol.  Ill,  p.  261;  "Grand  coutumier  de  Normandie",  chap.  74, 
ed.  Gruchy,  p.  175.  The  term  "mehaing"  applied  specifically  to  a  wound 
causing  mutilation. 

33  Bouteiller,  "Somme  rural",  ed.  1621,  book  II,  tit.  40,  p.  1492. 

^*  Beaumanoir,  chap.  69,  no.  8,  Vol.  II,  p.  487. 

36  Bouteiller,  "Somme  rural",  ed.  1621,  book  II,  tit.  40,  p.  1490. 

38  "Etablissements  de  Saint  Louis",  book  I,  chap.  154  and  book  II, 
chap.  25.  —  "Coutume  de  Touraine-Anjou",  no.  143.  —  "Anciennes 
eoutumes  d'Anjou  et  du  Maine",  F,  nos.  1336  to  1337,  1342,  1349,  1399, 
1422,  Vol.  II.  p.  495;  I,  nos.  121  and  122,  Vol.  Ill,  p.  278;  L,  no.  322, 
Vol.  IV,  p.  275. 

3'  "Grand  Coutumier  de  Normandie",  chap.  86,  ed.  Gruchy,  p.  196. 
Moreover,  one  who  orders  an  insult  is  punished  as  well  as  the  one  who 
uttered  it:  "Anciennes  eoutumes  d'Anjou  et  du  Maine",  F,  nos.  1345 
and  1350,  Vol.  II,  pp.  497  and  498;  "Li\Te  des  droiz  et  des  commande- 
mens",  nos.  287,  506,  592. 

3*  "Livre  des  droiz  et  des  commandemens",  nos.  608  and  648. 

168 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  39/ 

punished  by  a  fine  of  sixty  sous  or  more  in  discretion.^^  According 
to  Bouteiller,  one  who  insults  the  king,  his  feudal  lord,  or  his  mother, 
is  to  be  exposed  on  the  gibbet  for  three  days,  branded,  and  banished 
from  the  province.'*"  This  jurist  is  the  first  to  distinguish  insult 
from  defamation ;  but  of  the  latter,  however,  he  makes  virtually 
a  serious  insult  entailing  a  fine  of  sixty  sous ;  this  rule  is  found  also 
in  most  of  the  other  custumals.'*^ 

Though  blows,  insults,  and  wounds  are  (as  already  remarked) 
in  general  punished  by  more  or  less  heavy  fines,  yet  if  the  of- 
fender cannot  pay  he  is  imprisoned  for  the  debt. 

Most  crimes  against  the  family  consist  in  offenses  against 
women.  There  are,  however,  some  which  might  be  committed 
against  men.  Thus  the  crime  of  castration  is  punished  like  homi- 
cide.''- Bestiality  is  classed  with  rape,  and  is  punishable  by 
burning,  both  for  men  and  for  women.'*'^  In  Beaumanoir's  time, 
the  crime  of  "  rapt ",  or  the  abduction  of  women,  was  very  frequent ; 
the  great  jurist  gives  us  on  this  topic  some  curious  information. 
First  he  observes  that  one  must  be  cautious  in  lodging  an  accusa- 
tion of  this  crime  ;  for  often  girls  or  women  falsify  when  they  assert 
that  they  have  been  carried  off  by  force  and  ^•i()lence.  It  seems, 
moreover,  that  abduction  was  practised,  not  only  to  seduce  or  to 
marry  an  unmarried  female,  but  also  upon  married  women  in  order 
to  get  possession  of  the  valuables  which  the  women  might  take 
with  them.^''  This  offense  of  abduction  incurred  the  death  penalty  ; 
but  the  offender  could  avoid  it  by  marrying  his  victim,  with  her 
consent ;    marriage  then  stopped  the  judicial  proceedings.'"' 

Rape  is  no  less  grave  a  crime  than  abduction,  and  is  also  punish- 
able by  death ;  but  the  victim  must  make  speedy  complaint  and 
exhibit  visible  signs  of  the  violence.^''     If  the  rape  was  followed 

''  "Livre  des  droiz  et  des  eommandemens",  no.  651. 

■•"  Bouteiller,  "Somme  rural",  ed.  1021,  book  11,  tit.  40,  pp.  1477  and 
148G. 

■»  Boideiller,  "Somme  rural",  ed.  1621,  book  II,  tit.  40,  p.  1478. 

''"  "Livre  des  droiz  ot  dos  eommandemens",  no.  362. 

^'  "  Registrc  crimincl  du  riiatclct",  Vol.  I,  pp.  225  and  567  ;  "Registre 
eriminel  de  Saiiit-Marlin-des-Chanips",  p.  xcix. 

**  Beaumanoir,  chap.  30,  nos.  95  ct  seq.,  Vol.  I,  p.  449. 

"  "Aneienncs  coutum(>s  d'Anjou  et  du  Maine",  F,  no.  1328,  Vol.  11, 
p.  492;  L,  no.  288,  Vol.  IV,  p.  264;  "Livre  des  droiz  et  des  eommandi'- 
mens",  nos.  202,  762;  Bnitteiller,  "SomuK^  rural",  ed.  1621.  book  1.  tit. 
39,  p.  477;  book  II,  tit.  40,  p.  1489.  Tli(>  i)uiiishmen(  would  have  bec-n 
the  same  if  a  man  or  a  child  had  l)een  carried  ofT.      See  \\\v  text  lirst  ciled. 

''"On  this  suliject  one  will  find  in  the  Custunials  munerous  details : 
see  Marnier,  "Etablissements  de  Normandie",  p.  34  (7  .sr^.  •  "  !.,ivre  des 
droiz  et  des  eommandemens",  nos.  335,  345,  902;  ".\neieniies  coutumes 
d'Anjou  et  du  Maine",  A,  no.  9,  Vol.  I,  p.  45  ;   F,  no.  1320,  Vol.  1 1,  p.  489 ; 

169 


§39/]  THE   MIDDLE   AGES  [Paut  I,  Titlk  H 

by  marriage,  it  was  not  punished,  —  as  in  the  case  of  alxkiction. 
If  both  crimes  were  committed,  suhse(|uent  marriage  excused 
hoth.^'^  Carnal  intercourse  by  consent  with  an  unmarried  female 
was  no  crime ;  but  she  must  be  taken  as  wife,  or  given  a  dowry 
according  to  her  condition  in  life.^^  But  a  guardian  who  takes 
advantage  of  his  ward  is  punished  by  confiscation  of  all  his  goods, 
banishment,  and  even  by  death  penalty  if  he  returns  from  banish- 
ment.''^ 

The  most  serious  crimes  against  marriage  are,  naturally,  bigamy, 
adultery,  and  marriages  between  persons  prohibited  by  the 
Church.  Bigamy  included,  not  only  the  marrying  of  two  living 
wives,  but  also  the  marrying  a  widow. •''°  The  punishment  for 
adultery  varied  greatly,  according  to  locality ;  sometimes  it  was 
severe,  and  sometimes  altogether  ridiculous.  Mostly  no  punish- 
ment needed  to  be  inflicted ;  for  the  regional  Customs  gave  the 
husband  the  right  to  kill  his  wife  when  she  was  caught  in  the  act.^'^ 
According  to  the  "  Li  vre  de  jostice  et  de  plet  "  adulterers  might 
crave  pardon  of  the  king  for  the  first  two  offenses ;  the  third 
time  they  incurred  the  penalty  of  exile  and  of  general  confiscation.''^ 
At  Villefranche,  in  Perigord,  adulterers  had  the  choice  between  a 
fine  of  a  hundred  sous  or  running  naked  through  the  town ;  "* 
according  to  the  Custom  of  Prissey,  near  Äläcon,  adulterers  paid  a 
fine  of  sixty  sous  or  were  whipped  through  the  town.'"*  This 
alternative  penalty,  shameful  and  contrary  to  public  decency, 
was  widely  spread  in  the  IMiddle  Ages,  especially  in  the  South, 
though  finally  its  objectionable  character  was  recognized  ;  in  Bou- 
teiller's  time  it  seems  to  have  disappeared  in  the  North,  where 

L,  no.  288,  vol.  IV,  p.  264.  See  also  "Livre  de  jostiee  et  de  plet",  pp. 
282,  285,  290. 

"  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  no.  1367,  Vol.  II, 
p.  503. 

*^  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  no.  1319,  Vol.  II, 
p.  488. 

"  Bouteiller,  "Somme  rural",  ed.  1621,  book  I,  tit.  39,  p.  479. 

*"  They  had  wished  also  to  maintain  that  the  husband  became  bigamous 
when  he  had  relation  with  a  woman  knowing  that  she  was  an  adulteress. 
See  on  these  different  points,  "Anciennes  coutumes  d'Anjou  et  du  Maine", 
K,  nos.  13  el  seq.,  Vol.  IV,  p.  50 ;  L,  nos.  441  and  442,  Vol.  IV,  326.  —  See 
also  "Livre  des  droiz  et  des  commandemens",  no.  836,  which  does  not 
admit  bigamy  on  the  part  of  the  cleric  in  a  particular  case. 

"  Beaumanoir,  chap.  30,  nos.  102,  103,  104,  Vol.  I,  pp.  455  and  456. 

^2  "Livre  de  jostice  et  de  plet",  p.  280. 

"  Royal  Letters  of  October,  1357,  in  the  "Recueil  du  Lou\Te".  Vol. 
Ill,  pp.  201  and  210. 

"  Royal  Letters  of  October,  1362,  in  the  "Recueil  du  LouvTe",  Vol. 
Ill,  p.  597. 

170 


Chapter  VI]  FRANCE    IN    THE    LATER   MIDDLE    AGES  [§  39/ 

the  penalty  of  the  fine  only  was  inflicted.^^  Occasionally,  the  judi- 
cial duel  was  ordered  in  litigations  of  this  kind,  e.g.,  by  a  judgment 
of  the  Paris  Parliament  in  138G,  as  related  by  Jean  Le  Coq,  who  was 
counsel  for  one  of  the  accused  and  a  witness  of  the  combat. '^^ 
Those  who,  without  papal  dispensation,  contracted  marriages  for- 
bidden by  law  suffered  a  general  confiscation  of  all  their  posses- 
sions, in  favor  of  the  lord  high  justiciar ;  this  penalty  was  clearly 
borrowed  from  the  Roman  law.''^ 

Of  crimes  against  property,  arson  is  the  gravest  and  theft  the 
most  frequent.  ]Most  custumals  punish  the  crime  of  arson  by 
death;  others  are  less  severe,  but  perhaps  more  cruel,  for 
they  speak  of  loss  of  the  eyes  or  of  some  other  inhuman  punish- 
ment.^^ 

The  medieval  jurists  are  usually  severe  against  theft,  or  larceny, 
which  they  class  in  most  cases  as  a  capital  crime.  The  Custumals 
distinguish  several  kinds  of  theft.  Thus  theft  with  violence  is 
termed  "  violerie  ",  "  eschapelie  ",  "  force  "  ;  it  is  virtually  a 
distinct  crime,  punished  with  particular  severity,  almost  always 
by  death.^^  Whether  the  stolen  property  was  taken  from  an  owner, 
a  borrower,  or  a  pledgee,  was  immaterial ;  either  might  bring  the 
charge,  if  within  a  year  from  the  crime. ''°  Although  the  medieval 
law  had  generally  outgrown  the  principle  of  primitive  law,  which 
deemed  the  crime  more  serious  when  the  offender  was  taken  in  the 


"  Bouleiller,  "Sommo  rural",  edition  of  1621,  book  II,  tit.  8,  p.  1257. 

^^  Jean  Le  Coq  entertained  the  belief  (still  surviving  in  his  daj')  that 
God  intervened  in  these  ordeals,  and  yet  the  man  who  was  killed  at  the 
duel  in  question  was  innocent,  as  was  proved  by  the  testimony  of  the 
guiltv  person  himself,  who  confessed  it  on  his  deathbed.  See  Isamhert, 
Vol.  VI,  p.  Ö19. 

"  Cf.  Const.  G,  "De  incestis  nuptiis",  VI,  6;  and  "Livre  des  droiz 
et  des  commandemens",  no.  837,  Vol.  II,  p.  232. 

^^  "Livre  de  jostice  et  de  plet",  pp.  279,  30.5;  "Li\Te  des  droiz  et  des 
commandemens",  no.  347.  See  also  the  ordinance  of  Philip  V,  Novem- 
ber 16  to  19,  1319,  an  ordinance  ratified  by  the  queen,  Countess  of  Hour- 
gogne,  against  incendiaries  and  those  who,  undi-r  pretext  of  private  war, 
disturbed  public  peace  in  the  earldom  of  Bourgogne :  Isambeii,  Vol.  Ill, 
p.  231. 

^'  "Etablissements  de  Saint  Louis",  book  I,  chap.  82;  "Grand  Cou- 
tumier  de  Normandie",  chap.  71;  "Livr(>  de  jostic(>  et  de  plet",  280, 
285,  300.  —  "Anciennes  coutumes  d'Anjou  et  du  Maine",  B,  no.  22,  Vol. 
I,  p.  78;  F,  no.  1334,  Vol.  II,  p.  493;  "Coutume  de  Bayonuo",  chap. 
114,  no.  9. 

^"Assises  de  Jerusalem",  chap.  58;  Jean  d'Ibelin,  chap.  119; 
Pierre  de  Fontaines,  "Conseil",  chap.  20,  no.  10;  "Ancien  coutumier 
de  Bourgogne",  chap.  18;  Beaumnnoir,  chap.  31,  no.  15,  Vol.  I,  p.  464. 
This  jurist  does  not,  however,  allow  the  bailor  to  recover  posst^ssion  of 
the  property  unless  the  bailee  is  insolvent,  chap.  31,  no.  Ki.  See  also  in 
re.spect  to  theft,  "Livre  de  jostice  (>t  de  ph't",  pp.  279,  281,  292. 

171 


§  39/]  THE   MIDDLE   AGES  [Pakt  I,  Title  II 

act  (because  the  victim  then  feels  more  keenly  the  violation  of  his 
right) ,  yet  in  the  case  of  theft  we  find  the  law  still  directly  influenced 
by  the  early  Germanic  traditions,  for  the  thief  taken  in  the  act  is 
punished  with  great  severity.  The  notion  of  taking  in  the  act 
was  fulfilled  if  the  owner  pursues  without  delay  or  relenting  and 
succeeds  in  catching  him  while  still  in  possession  of  the  stolen 
goods. ^^  The  offender  is  then  brought  before  the  court  of  the 
place  where  he  has  been  caught,  and  is  not  allowed  to  purge  himself  ; 
while  if  not  taken  in  the  act,  he  must  have  been  brought  before 
the  judge  of  the  lord  on  whose  land  he  resided,  and  would  have  been 
allowed  to  defend  himself.^^ 

At  the  period  when  the  Salic  Law  treated  theft  as  a  private  wrong 
only  liable  to  a  fine,  the  imperial  Capitularies  were  already  making 
it  a  genuine  violation  of  the  public  peace,  severely  punished ;  the 
thief  was  to  have  his  eye  put  out ;  for  a  second  oft'ense  his  nose 
was  cut  off ;  for  a  third,  he  was  condemned  to  death. ^^  The  medie- 
val Custumals  preserved,  in  general,  this  system,  introducing  no 
change  except  as  to  the  manner  of  mutilation ;  ^^  thus  Liger  re- 
quires that,  according  to  the  kind  of  animal  stolen,  the  thief  be 
condemned  to  death,  have  his  eyes  put  out,  or  his  nose  cut  off.^^ 
But  furthermore,  the  Custumals  punished  certain  thefts  (even  when 
the  oflPender  was  not  taken  in  the  act)  with  particular  severity ; 
they  imposed  the  death  penalty,  with  confiscation  of  property, 
according  to  the  circumstances  of  the  crime  or  the  rank  of  the 
persons,  for  a  theft  by  night,  or  with  violence,  or  by  a  servant 
from  his  master,  or  by  a  vassal  from  his  lord.^^     Conversely,  thefts 

"  "Tres  aneienne  coutume  de  Bretagne",  chap.  101;  "Grand  Cou- 
tumier  de  Normandie",  chap.  71,  which  requires,  however,  that  the 
victim  of  the  theft  should  raise  a  hue  and  cry.  According  to  the  Custom 
of  Bayonne  (chap.  67)  if  one  night  has  elapsed  since  the  theft,  the  offender 
is  not  taken  in  the  act. 

^2  "Assises  de  la  cour  des  bourgeois",  chap.  241 ;  "Etablissements  de 
Saint  Louis",  book  II,  chap.  2.  —  Beaumanoir,  chap.  30,  no.  93  and  chap. 
31,  nos.  1  et  seq.,  no.  14;  "Grand  Coutumier  de  Normandie",  chap.  23. 
For  the  curious  particulars  of  the  procedure  for  theft,  see  Jobbe-Duval, 
"Etude  historique  sur  la  revendieation  des  meubles  en  droit  frangais." 

«3  Capit.  of  779,  Pertz,  "Leges",  I,  38. 

"  "Coutume  de  Touraine-Anjou",  no.  22;  "EtabUssements  de  Saint 
Louis",  book  I,  chap.  32. 

^*  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  no.  1379,  Vol.  II, 
p.  505. 

8^  "Assises  de  la  cour  des  bourgeois",  chap.  232  ;  "Charte  communale 
d'Abbeville",  Art.  2;  "Olim",  Vol.  I,  pp.  240  and  328;  "Li\Te  des 
droiz  et  des  commandemens",  nos.  347  and  580;  "Anciennes  coutumes 
d'Anjou  et  du  Maine",  B,  no.  28,  Vol.  I,  p.  81 ;  C,  no.  26,  Vol.  I,  p.  217; 
D,  nos.  33,  81,  82,  Vol.  I,  pp.  406,  432;  F,  nos.  796,  797,  1371,  1373, 
1382,  Vol.  II,  pp.  288,  504,  505;   I,  no.  101,  Vol.  Ill,  p.  262. 

172 


Chapter  VI]  FRANCE    IN    THE    LATER    MIDDLE    AGES  [§  39/ 

of  least  importance,  involving  objects  of  little  value,  were  punish- 
able only  by  banishment  or  by  fine.^*^ 

This  general  system  is  still  found  in  Bouteiller.  He  considers 
larceny,  when  the  offender  is  taken  in  the  act,  as  a  capital  crime, 
if  the  stolen  object  is  worth  more  than  five  sous ;  below  this  sum, 
it  is  punishable  the  first  time  by  the  loss  of  the  ear,  the  second  time, 
by  death.  Theft  not  taken  in  the  act  is  punishable  only  by  a  fine 
of  fourfold  value  in  favor  of  the  lord,  or  by  the  lash  if  the  offender 
is  insolvent.  Bouteiller  is,  however,  more  severe  for  certain  thefts, 
such  as  robbing  of  graves,  children,  and  cattle;  but,  on  the  other 
hand,  he  recommends  the  judges  to  be  indulgent  toward  the  man 
who  has  stolen  through  necessity.  Finally,  he  classes  with  theft 
(but  not  confusing  them)  certain  acts  which  to-day  would  consti- 
tute breach  of  trust,  cheating,  or  other  forms  of  dishonesty  ;  thus 
he  inflicts  a  fine  of  fourfold  upon  the  man  who,  knowingly,  sells 
the  same  object  to  several  persons. ^^ 

The  crime  oi  forgery  (falsification)  is  also  a  property  offense,  and 
has  numerous  varieties :  false  money,  false  merchandise,  false  meas- 
ure, false  writing,  false  complaint,  false  witness,  false  oath,  etc.  All 
these  ofl'enses  are,  in  general,  capital,  and  are  severely  penalized. 

Counterfeiters  are  punished  by  death  or  by  the  loss  of  the  eyes ; 
quite  often  they  are  condemned  to  be  thrown  into  a  boiling  cal- 
dron.^^  Bouteiller  regards  counterfeiters  guilty  of  "  lese  majeste  "  ; 
coinage  was,  according  to  him,  a  royal  prerogative,  and  he  demands 
that  they  be  boiled  ;  but  he  warns  us  against  confusing  with  buyers 
of  false  money.^°  He  who  counterfeits  merchandise  must  have  his 
hand  cut  off  and  the  merchandise  destroyed ;  if  he  has  merely 
sold  false  merchandise  without  manufacturing  it,  he  incurs  a  fine 
of  sixty  sous."^  He  who  uses  false  measures  is  quite  often  con- 
demned to  the  loss  of  the  thumb. "- 

"  "Registre  criminel  do  Saint-Martin-des-Champs",  pp.  94,  104,  111. 

«8  See  on  this  last  point  "Somme  rural",  ed.  1621,  book  II,  tit.  40, 
p.  1480,  also  p.  1471;  "Livre  de  jostiee  et  de  plet",  pp.  104  and  280. 
For  the  general  theory  of  theft  or  larceny,  see  book  I,  tit.  35,  p.  318. 

«9  "Li\Te  de  jostioe  et  de  plet",  p.  281  ;  "Registre  criminel  do  Haint- 
Martin-des-Champs",  p.  97;  "Anciennes  coutumes  d'Anjou  et  du 
Maine",  C,  no.  25,  Vol.  I,  p.  215 ;  F,  no.  1304,  Vol.  II,  p.  502  ;  L,  no.  289, 
vol.  IV,  p.  265;  "Li\Te  des  droiz  ot  des  coniniandemens",  no.  347.  See 
also  Boutaric,  "La  F'rance  sous  Philippe  le  Bel",  p.  321. 

^o  Bouteiller,  "Somme  rural",  book  I,  tit.  39,  p.  481,  where  interesting 
details  can  be  found  on  the  various  crimes  whose  object  may  be  money. 

"  "Livre  des  droiz  et  des  commandemens",  no.  260,  Vol.  1,  p.  411; 
"Anciennes  coutumes  d'Anjou  et  du  Maine",  B,  no.  158,  Vol.  I,  p.  163; 
C,  no.  144,  Vol.  I,  p.  345;  D,  no.  115,  Vol.  I,  p.  445;  F,  nos.  1393  and 
1420,  Vol.  II,  p.  507  and  513 ;    L,  no.  325,  Vol.  IV,  p.  280. 

"  "Anciennes  coutumes  d'Anjou  et  du  Maine",  B,  nos.  154  and  157 

173 


§  39/]  THE  MIDDLE  AGES  [Part  I,  Title  II 

Forgery,  properly  speaking  (consisting  of  forging  or  altering  a 
document)  is,  in  general,  punisha})le  by  the  pillory ;  but  if  the 
offender  is  an  officer  or  a  notary,  then  by  death. ^' 

The/a/.w  icitness  is  threatened  with  the  pillory,  a  long  imprison- 
ment, or  a  discretionary  fine  ;  ^'^  he  who  brings  false  complaint  is 
threatened  with  banishment  or  fine.^^  But  they  are  less  severe 
against  false  oath,  which  is  only  punishable  by  a  fine  of  sixty  sous, 
except  in  serious  cases  when  this  pecuniary  penalty  then  be- 
comes discretionary.^® 

With  offenses  against  property  can  be  classed  those  against  the 
game  and  fish  laws.  Although  the  day  of  exaggerated  penalties 
for  such  cases  had  not  yet  come,  the  hunting  or  the  fishing  rights 
of  the  feudal  lords  or  the  king  were  already  protected  by  severe 
measures.  The  law  finally  reached  the  general  principle  that 
hunting  was  to  be  reserved  for  certain  persons.  An  ordinance  of 
January  10,  1396,  proclaimed  that  nobody  had  the  right  to  hunt 
unless  he  were  a  noble  or  a  townsman  living  on  his  property ; 
hunting  implements  found  in  the  houses  of  plebeians  were  to  be 
confiscated;  peasants  were  allowed  only  to  keep  watch-dogs,  to 
scare  away  wild  animals  from  the  crops. "^  Some  time  earlier,  the 
right  to  hunt  in  the  royal  forests  had  been  regulated  by  special 
ordinances  ;  royal  Letters  of  September  7,  1393,  forbade  the  hunt- 
ing of  wild  animals  in  the  royal  forests  unless  by  royal  Letters 
signed  by  the  Duke  of  Burgundy  as  general  master  of  the  hunt ; 
and  an  ordinance  of  ]March  29,  1396,  required  besides,  that  these 
Letters  should  be  verified  by  the  master-general  of  waters  and 
forests. ^^  Violations  of  game  and  fish  laws  were  still  classed  in 
Bouteiller's  time  among  non-capital  crimes.  He  who  hunted  or 
fished  at  the  expense  of  his  lord  forfeited  his  personal  property; 
in  other  cases  a  mere  fine,  usually  sixty  sous.^^    He  who  stole  game 

Vol.  I,  pp.  162  and  163 ;  C,  nos.  142  and  144,  Vol.  I,  p.  344 ;  D,  no.  115, 
Vol.  I,  p.  445;  F,  nos.  1392  and  1409,  Vol.  II,  pp.  507  and  510;  I,  no. 
137,  Vol.  Ill,  p.  288 ;  L,  nos.  322  and  325,  Vol.  IV,  pp.  275  and  280. 

"  ''Li\Te  de  jostice  et  de  plet",  p.  284;  "Registre  crimiuel  de  Saint- 
Martin-des-Champs",  p.  cii ;  "Li\Te  des  droiz  et  des  coinmandemeus", 
no.  285;  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  no.  1331  and 
1332,  Vol.  II,  p.  493. 

''*  Beaumanoir,  chap.  30,  nos.  45  et  seq..  Vol.  I,  p.  424.  Cf.  Vol.  II, 
pp.  118,  396,  398. 

"^  Bouteiller,  "Somme  rural",  book  II,  tit.  40,  edition  of  1621,  p.  1491. 

"8  Beaumanoir,  chap.  30,  nos.  87  et  seq..  Vol.  I,  p.  433. 

"  Ord.  of  January  10,  1396,  Isatnbert,  Vol.  VI,  p.  772. 

^^  Isambert,  Vol.  VI,  pp.  756  and  770. 

^^  "Anciennes  coutumes  d'Anjou  et  du  Maine",  D,  nos.  113  and  127, 
Vol.  I,  pp.  444  and  451 ;  I,  nos.  135  and  154,  Vol.  Ill,  pp.  287  and  300.  — 

174 


Chapter  VI]  FRANCE    IN   THE    LATER   MIDDLE   AGES  [§  39/ 

or  fish  incurred  usually  a  similar  fine ;  if  by  night,  he  incurred 
death.80 

There  were  also  numerous  minor  police  measures,  usually  inflict- 
ing only  fines,  although  at  times  very  heavy  ones.  At  this  period 
the  issuance  of  royal  ordinances  had  not  become  frequent,  as  it 
(lid  in  the  following  period  ;  but  there  was  a  legislative  activity  in 
the  interest  of  public  peace  and  order,  and,  where  royal  ordinances 
are  lacking,  we  find  measures  of  this  kind  in  the  regional  Customs 
and  in  the  town  statutes.  Gambling  is  what  the  royal  power 
chiefly  endeavors  to  repress ;  the  very  multiplicity  of  ordinances 
seems  to  prove  their  inefficiency.^^  Possibly  these  prohibitions 
were  prompted,  rather  by  the  desire  of  preventing  men  from  amus- 
ing themselves  at  the  expense  of  military  service,  than  of  protecting 
them  from  pecuniary  ruin.  In  Paris,  an  ordinance  of  the  provost 
forbade  card  playing,  tennis,  bowling,  dice,  and  nine-pins  in  the 
ta\'erns ;  ^-  this  was  indeed  a  police  measure  intended  to  prevent 
quarrels.  Bouteiller  recommends  that  keepers  of  gambling  houses 
be  condemned  to  a  fine  of  sixty  sous.^^ 

It  was  forbidden  to  maintain  houses  of  ill-fame;  mostly  local 
customs  regulated  sexual  morals.  At  times  the  penalty  was  very 
severe  ;  according  to  the  "  Livre  de  jostice  et  de  plet,"  the  keeper 
of  a  house  of  ill-fame  is  to  be  whipped  and  banished  from  the  city, 
and  his  property  confiscated  to  the  king.^  Other  police  measures 
prohibited  the  wearing  of  masks  in  the  street ;  going  about  with 
weapons  or  armor  ;  pasturing  animals  in  the  wheat  at  certain  times 
of  the  year.^' 

Vagrancy  is  a  plague  of  all  epochs;  but  in  the  Middle  Ages  it 
seems  to  have  been  less  serious  than  is  generally  believed ;  for 
abbeys  and  monasteries  were  always  ready  to  shelter  indigent 

"Livre  des  droiz  et  des  eommandemens",  no  437.  —  Bouteiller,  "Somme 
rural",  book  II,  tit.  40,  edition  of  1()21,  p.  1476. 

'"  Hcnnmnnoir,  chap.  30,  no.  lOö,  Vol.  I,  p.  4ÖG.  —  Ord.  of  Philip  the 
Fair  of  1299,  Isambert,  Vol.  11,  p.  724. 

8'  Ordinance  of  Philip  the  Fair  of  1319  forbidding,  under  penidty  ()f  a 
fine,  the  playing  of  dice,  backgammon  or  trick-track,  quoits,  nine-pins, 
billiards,  bowling  and  other  similar  games  whicli  divert  men  from  military 
drills  :  Isnmherl,  Vol.  Ill,  p.  242  ;  Ordinance  of  Cliarles  V  of  April  3,  13t)9. 
which  forbids,  under  penalty  of  a  line,  the  participation  in  games  of 
chance  and  enjoins  the  practice  of  the  bo\v  and  cross-bow:  Isambert, 
Vol.  Ill,  p.  352. 

S2  Januarv  22,  1397,  Isambert,  Vol  VI,  p.  782. 

«»  "Somme  rural",  book  11,  tit.  40,  ed.  1021,  p.  1473. 

^*  "Li\Te  de  jostice  et  de  plet",  p.  282. 

"Ord.  of  Charles  VI  of  March  9,  1399,  Isambert,  Vol.  VI,  p.  S44  : 
Bouteiller,  "Somme  rural",  book  II,  tit.  40,  ed.  1021,  pp.  1474  and 
1483. 

175 


§  39/]  THE  MIDDLE  AGES  [Part  I,  Title  II 

persons.  Still,  we  find  at  times  in  the  old  regional  Customs  meas- 
ures against  vagrants ;  magistrates  may  arrest  them,  imprison 
them  temporarily,  examine  them,  and  if  no  crime  can  be  charged 
against  them,  may  expel  them.**'' 

Naturally  there  were  also  at  this  period  fiscal  offenses,  —  non- 
payment of  fees  or  tolls  for  crossing  fields,  indirect  taxes  on  wines, 
salt,  and  other  articles;  ^^  but  they  offer  nothing  exceptional,  and 
are  common  to  all  times.  What  is  more  curious,  and  peculiar  to 
the  period,  are  certain  offenses,  half  civil,  half  feudal,  which  con- 
cern the  property-system,  —  for  instance,  taking  possession  with- 
out the  seisin  of  the  lord ;  delay  in  paying  quit-rents,  taxes  on  sales, 
or  similar  dues ;  all  of  them  misdemeanors,  generally  punishable 
by  fine.^^  We  note,  also,  that  Beaumanoir  considers  disseizin 
and  disturbance  of  possession  as  genuine  offenses,  and  therefore 
he  treats  of  them  after  the  other  misdemeanors.^^ 

Certain  offenses,  equally  characteristic  of  the  time,  may  be 
designated  offenses  of  procedure.  The  extreme  rigor  of  the  formal- 
ities of  judicial  procedure  in  the  ]\Iiddle  Ages  is  well  known.  The 
observance  of  the  strictest  formalities  was  sought  by  severe 
methods ;  a  violation  resulted  not  only  in  the  loss  of  the  case,  but 
very  often  also  in  a  fine,  at  times  even  very  heavy ;  and  the  men  of 
law  were  the  more  insistent  on  this  respect  for  formalities  as  the 
fines  benefited  the  lords.  These  penalties  imposed  by  the  sheriff 
for  errors  of  procedure  were  an  important  time  of  revenue  for  the 
lords.  For  ample  proof  of  this,  one  may  consult  the  old  accounts 
of  the  Exchequer  of  Normandy.^°  Sometimes  the  regional  Cus- 
toms, showing  pity  on  the  poor  plaintiffs,  exposed  as  they  were 
every  instant  to  a  great  variety  of  fines,  conceded  the  right  to  ask 
permission  to  speak  without  incurring  the  dangers  of  technical 
errors ;  the  lord  or  his  representative  could  grant  them  this  favor, 
or,  at  any  rate,  up  to  a  certain  sum.^^     A  defendant  especially  ran 

8^  "Anciennes  eoutumes  d'Anjou  et  du  Maine",  D,  no.  84,  Vol.  I, 
p.  434;  F,  no.  43,  Vol.  II,  p.  48;  I,  no.  103,  Vol.  Ill,  p.  264;  L.  no.  294, 
Vol.  IV,  p.  267. 

"  Bouteiller,  "Somme  rural",  book  II,  tit.  40,  ed.  of  1621,  p.  1484. 

^^  Beaumanoir,  chap.  30,  nos.  38  to  45.  He  who  is  accused  of  not 
paying:  his  quit-rent,  his  field-rent  in  kind  or  similar  dues,  import  duties 
or  town  duties,  mav,  however,  clear  himself  by  oath:  Beaumanoir, 
chap.  30,  nos.  68,  70,' 71,  Vol.  I,  p.  434. 

^^  Beaumanoir,  chap.  32,  Vol.  I,  p.  465. 

^^  Cf.  Delisle,  "Des  revenus  publics  en  Normandie  au  XIP  siecle", 
in  the  "Bibliotheque  de  I'Ecole  des  Chartes",  3d  series,  Vol.  Ill,  pp.  105 
et  seq.     Cf.  "  Great  Roll  of  the  Pipe  ",  I,  Richard  I,  71. 

"  Roisin,  "Franchises  de  Lille",  p.  29,  no.  6.  Cf.  Brunner,  "La 
parole  et  la  forme  dans  I'aneienne  procedure  fran§aise",  in  the  "Revue 

176 


Chapter  VI]  FRANCE    IN    THE    LATER   MIDDLE    AGES  [§  39/ 

great  risk,  from  the  very  beginning  of  the  trial ;  in  fact,  he  was 
obhged,  under  pain  of  a  fine,  if  ordered  by  the  judge,  to  answer 
word  by  word  the  charge  formulated  against  him ;  ^-  he  even 
risked  falling  "  in  misericordiam  curiae  ",  which  gave  ground  for 
a  discretionary  fine,  so  that,  in  strictness,  the  lord  would  have  the 
right  to  seize  all  his  personal  property.  If  the  defendant  wished 
to  plead  an  excuse,  he  could  do  so  only  after  making  answer,  or, 
at  least,  together  with  his  answer.^'^  With  his  proof  especially 
the  law  was  severe ;  any  technical  fault  in  furnishing  it  forfeited 
the  right  to  furnish  it,  and  brought  on  also  the  fine  which  would 
have  been  inflicted  in  case  the  proof,  if  properly  made,  had  not 
been  complete.  In  taking  an  oath,  the  formula,  the  utterance,  the 
attitude  of  the  swearer,  the  manner  of  placing  his  hand,  were  all 
strictly  prescribed.  "  Tres  ancien  Coutumier  de  Xormandie  " 
gives  curious  details  on  this  subject.  The  inexperienced  plaintiff 
(it  tells  us)  will  fall  on  his  knees  to  take  oath,  without  awaiting 
the  judge's  order;  for  this  alone  he  is  "  in  misericordiam  ducis", 
and  the  clerk  records  the  fine  in  his  register ;  whereupon,  the  party 
rashly  rises,  to  retrieve  his  error,  but  this  time  commits  another, 
for  he  should  have  awaited  the  order  of  the  judge,  and  for  this 
second  error  he  incurs  a  new  fine.^^  One  might  multiply  examples, 
but  they  are  too  well  known  to  need  dwelling  upon.^^  The  counsel 
("  for-speaker  ",  "  prolocutor  ")  ran  less  danger  than  the  client 
himself ;  nevertheless,  he  must  take  care  not  to  go  beyond  his 
powers,  for  later  his  client  might  disavow  his  acts,  and  if  the  client 
was  successful  in  this,  the  counsel  incurred,  in  his  turn,  a  fine  in 
favor  of  the  lord.^"    Once  sentence  was  passed,  the  ai)i)eal  must 

critique  de  legislation  et  de  jurisprudence",  nouv.  ser.  I,  1871-1872,  pp. 
22,  480,  [reprinted  in  his  "Forschungen",  1894;  originally  published  in 
"K.  K.  Wiener  Akademie  der  Wissenschaften",  Vol.  77,  p.  Oöö.  —  Ed.]. 

äi  See  "Ohm",  Vol.  II,  p.  744,  no.  56  and  p.  774,  no.  114. 

»3  See  for  example  Beaumanoir,  chap.  19,  no.  11.  Cf.  Brunncr,  loc. 
CiL,  pp.  34,  237,  240,  241. 

^  "Trfs  ancien  Coutumier  de  Normandie",  ed.  Tnrdif,  chap.  0."),  p. 
56:  "lo,  Placitatores  vero  ponebant  in  misericordia  simplicem  populuni, 
quoniam  absque  precepto  justicie  genua  sua  flecteVumt  venientes  ad 
juramenta  sua.  Cum  igitur,  genua  flectentes,  se  audissent  accusari  di^ 
afflexione  genuum,  surgcbant  ;  placitatores  vero  eos  accusabant,  quoniam 
surrexerant  absque  jjrecepto  justicie,  et  ita  dericus  justicie  (>os  in  pclHcula 
sua  scriliebat  in  misericordia.  2o,  De  hoc  dixit  Xormannus  d'Orgieville 
quod  ipse  tantum  vixerat  ut  videret  ludere  in  curia  domini.  Regis  ad 
Bernardum  Becoantem,  sicut  pueri  ludentes  dicunt :  'Bernarde,  surge'; 
qui,  nisi  cito  surrexerit,  in  facie  intingetur.  Eodem  modo  scribit  elericus 
in  pellicula  intingit  populum  simplicem  injuste  in  nusi'ricordia." 

^'  See  in  this  respect  Bruitncr,  op.  eil.,  pp.  246,  250,  254,  2.")0. 

*  Beaumanoir,  chap.  5,  nos.  7  and  14;  Destnares,  "Decisions",  412. 
Cf.  Brunner,  op.  and  loc.  eil.,  p.  553. 

177 


§;}«)/]  THE   MIDDLE   AGES  [Pakt  J,  Titlk  IL 

he  takcMi  on  the  spot  and  iic('()r(lin<:j  to  formula,  under  pain  of  losing 
the  riglit  of  appeal  and  being  fined.  There  was  also  a  fine  against 
the  appellant  if  defeated  on  the  main  point ;  and  a  fine  against  the 
judges  of  the  previous  trial  if  he  wins.^^ 

After  the  formalism  disai)peared,  the  procedural  fines  were 
preserved,  but  with  a  different  aim,  to  punish  the  bad  faith  of 
plaintiffs.  Thus,  there  were  fines,  more  or  less  heavy,  reacfiing 
at  times  the  sum  of  sixty  sous,  against  one  who  failed  to  present 
himself  on  continuance  of  a  civil  case ;  ^^  against  one  who  wrongly 
opposed  an  attachment ;  against  one  who  lost  in  an  action  for 
novel  disseizin,  or  of  breach  of  peace,  of  truce,  or  of  faith  (as 
formerly  against  one  who  lost  his  appeal) ;  against  the  debtor  who 
denied  his  debt  or  his  written  agreement ;  against  the  creditor 
if  he  claimed  twice  what  was  due  him,  or  if  he  arrested  his  debtor 
without  right ;  against  one  who  bought  property  in  dispute ;  and 
against  a  plaintiff  wdio  summoned  the  defendant  before  the  wrong 
judge.^^  Judges  and  lawyers  were  equally  punished  when  they 
failed  in  their  duty.  If  the  judge  took  a  bribe,  he  incurred  a  dis- 
cretionary fine,  the  loss  of  his  office,  and  damages.^""  The  lawyer 
guilty  of  the  same  offense  suffered  the  same  penalties.  A  discre- 
tionary fine  and  the  loss  of  office  were  the  penalties  for  the  counsel 
or  the  attornc}^  who  made  with  a  client  the  agreement  of  "  quota 
litis."  ^°^  The  counsel  whose  acts  were  disavowed  for  excess  of 
authority  also  incurred  a  fine ;  as  also  one  who  insulted  a  client. ^°^ 
It  seems  that  the  mere  act  of  pleading  without  power  of  attorney 
was  a  misdemeanor,  although  no  disavowal  followed ;  the  of- 
fender must  pay  the  judge  two  capons.^^'^  The  clerk  or  the  bailiff 
also,  who  drew  up  a  document  and  forgot  to  date  it,  incurred  a 
fine  of  two  capons  to  the  judge. ^"^ 

Besides  crimes  and  misdemeanors  of  types  common  to  all  ages, 

^^  Beaumanoir,  chap.  61,  nos.  44  and  51,  Vol.  II,  pp.  391  and  395; 
"Anciens  eoutumiers  de  Picardie",  ed.  Marnier,  pp.  38,  58,  61,  72,  84. 

'^  Bouteiller,  "Somme  rural",  book  II,  tit.  40,  ed.  1621,  p.  1467. 
According  to  the  "Registre  criminel  de  Saint-Martin-des-Champs",  he 
who  failed  to  present  himself  in  a  criminal  case  was  to  be  banished ;  see 
pp.  cv  and  evi. 

99  Bouteiller,  "Somme  rural",  book  II,  tit.  40,  pp.  1467  to  1472,  1479, 
1480,  1483. 

•00  Bouteiller,  book  II,  tit.  40,  p.  1481. 

'01  Bouteiller,  book  II,  tit.  40,  p.  1482. 

'02  Bouteiller,  book  II,  tit.  40,  p.  1482. 

103  [Pqj.  ^[^g  narrow  limits  of  the  attorney's  authority  at  this  period, 
see  Brunner's  essay,  translated  in  III  "Illinois  Law  Review"  257  (1908), 
"The  Early  History  of  the  Attorney."  —  Ed.] 

10*  Bouteiller,  book  II,  tit.  40,  p.  1470. 

178 


Chapter  VI]  FRANCE   IN   THE   LATER  MIDDLE   AGES  [§39/ 

the  feudal  State,  with  its  special  social  relations,  developed  what 
may  be  termed  feudal  offenses;  they  formed  the  sanction  for  the 
duties  of  fealty,  faith,  and  homage  imposed  on  the  vassal  toward 
his  lord,  and  the  duty  of  protection  imposed  on  the  lord  toward 
his  vassal.  The  vassal  guilty  of  treason  forfeited  his  fief,  which 
returned  to  his  lord ;  on  the  other  hand,  the  guilty  lord  lost  the 
vassalage  due  him.^*''^  If  the  vassal  commits  at  the  same  time,  a 
treason  and  a  common  law  offense,  as,  if  he  makes  an  attempt  on 
his  lord's  life,  or  on  the  honor  of  his  lord's  daughter,  both  the 
feudal  forfeiture  and  the  ordinary  penalties  are  inflicted.^'^^  The 
violation  of  sworn  faith  must  not  be  confused  with  the  neglect  of 
faith  and  homage;  the  latter  offense,  during  the  early  Middle 
Ages,  also  entailed  absolute  forfeiture,  but  later  it  was  punishable 
only  by  conditional  forfeiture.^"^  Less  serious  feudal  offenses  were 
in  general  punishable  only  by  fines.  Thus,  in  the  earlier  period, 
according  to  the  "  Assises  de  Jerusalem,"  the  vassal  owed  a  sub- 
sidy or  "  aid"  (on  penalty  of  a  felony)  only  when  needed  to  ran- 
som his  lord  from  the  enemy  ;  in  later  times,  the  failure  to  pay  any 
sort  of  subsidy  or  "  aid  "  led  only  to  a  suit  by  the  lord  against  the 
vassal. ^''^  In  Germany  and  in  Lombardy  neglect  of  military  ser- 
vice led  to  confiscation  of  the  fief ;  in  France  it  was  early  conceded 
that  a  mere  fine  was  imposed  for  refusal  to  enter  the  army  or  to 
pay  for  exemption  in  time  of  war.^°^ 

As  feudalism  had  led  to  the  creation  of  offenses  peculiar  to  that 
social  status,  so  also  the  influence  of  the  Church,  extending  over  the 
secular  life,  had  led  to  the  recognition  of  certain  offenses  special 
to  this  period.     The  most  serious  of  these  special  crimes,  repressed 


'"^  Beaumanoir,  chap.  45,  Vol.  TI,  p.  214.  —  Jean  d'Ibelin,  pp.  100  el 
seq..  Vol.  1,  p.  303. 

lOG  "Anciennes  eoutumos  d'Anjou  et  du  Maine",  C,  no.  4S,  Vol.  I, 
p.  244.  So  also,  if  the  olVcnise  had  been  committed  by  tlie  lord  toward  his 
vassal;  see  "Etablissements  de  Saint  Louis",  book  II,  ehap.  ."JS,  ed. 
Viollet,  Vol.  II,  p.  4()3 ;  "Aneiennes  coutumes  d'Anjou  et  (hi  Maine", 
B,  no.  55,  Vol.  1,  p.  93  ;  C,  no.  49,  Vol.  I,  p.  245  ;  E,  no.  129,  Vol.  I.  p.  4.-)2 ; 
F,  no.  940,  Vol.  II,  p.  33G.  —  Without  directly  olTendinp  his  hwd.  tho 
vassal  might  commit  an  infamous  deed,  for  instance,  abjure  tlu>  (^hristian 
religion  ;   in  this  case  also  there  ensued  dissolution  of  the  feudal  lien. 

'"^  Jean  Le  Coq,  "Question  172",  cites  a  decree  of  1388  which  rt'fuses 
to  the  lords  the  right  of  confiscating  the  fief,  but  he  remarks  that  this 
is  a  new  rule. 

'"a  "Assises  de  Jerusalem",  Jean  d'lhelin,  chap.  2(»9,  Vol.  I,  p.  307; 
"Etablissements,  coutumes,  assis(>s  et  arrets  de  rEchicpiicr  de  Xor- 
mandie",  ed.  Marnier,  pp.  33  and  101. 

'"^  Brüssel,  "Nouvel  examen  de  I'usage  general  des  fiefs",  Vol.  I,  p. 
167.  As  for  Germany  and  Lombardy,  see  "  Libri  feudorum",  II,  24,  G; 
"Constitutio  de  expeditione  romana",  §  2,  I'crlz,  "Leges",  Vol.  II,  p.  3. 

179 


§  39/]  THE   MIDDLE    AGES  [Part  I,  TiTLE  II 

with  the  greatest  rigor,  was  naturally  the  crime  of  heresy.  In 
Gaul,  under  the  Merovingians,  and  in  Italy,  under  the  Lombards, 
a  certain  regime  of  tolerance  had  been  established  between  Cathol- 
icism and  Arianism.  Under  the  Carolingians  we  still  find  no  sys- 
tematic legislation  against  heretics ;  at  that  epoch  heresy  was  rare 
and  created  little  apprehension.  But  the  appearance  of  Catharism, 
toward  the  year  1000,  gave  rise  to  a  radical  change  in  the  law. 
Catharism  —  the  heresy  of  the  Albigenses  —  spread  with  alarming 
rapidity  through  Italy,  Spain,  France,  and  Germany.  In  a  society 
like  feudalism  both  civil  and  religious,  it  constituted  one  of  the 
gravest  dangers.  Thus,  as  soon  as  heretics  became  numerous,  the 
Church  and  royalty  stopped  at  no  measure  to  eradicate  them. 
The  Church  no  longer  contented  itself  with  sending  heretics  before 
the  ordinary  tribunals ;  it  created  the  tribunal  of  the  Inquisition,  or 
the  Holy  Office,  having  a  special  jurisdiction  over  offenses  against 
the  faith.  It  deprived  heretics  of  the  benefit  of  the  ordinary 
canonical  procedure,  which  conceded  important  guarantees  to  the 
accused :  in  particular,  the  accused  could  not  obtain  the  names  of 
the  witnesses  and  of  the  informers;  the  disqualifications  of  wit- 
nesses disappeared  in  all  trials  of  heretics;  the  accused  was  re- 
fused the  assistance  of  a  lawyer ;  and,  finally,  torture  is  introduced, 
following  the  Roman  law\  The  repression  of  heresy  led  to  the  re- 
appearance of  this  cruel  expedient ;  for  apparently  torture  was  ap- 
plied but  little  by  the  judges  of  the  Church,  apart  from  trials 
against  heretics.  But  unfortunately,  it  now  came  into  general  use 
in  secular  courts. 

Following  the  Northern  practices,  the  regions  of  the  South  came 
to  adopt  the  punishment  of  burning  alive,  as  the  usual  one  for 
heretics ;  although  this  practice  had  no  justification  either  in  statute 
or  in  tradition.  As  early  as  the  1000  s,  this  terrible  penalty  had  been 
employed  with  extreme  rigor  in  Germanic  countries  and  in  the 
North  of  France.  But  in  the  regions  of  Southern  France  the 
treatment  of  the  Albigenses  at  the  same  period  was  markedly  differ- 
ent ;  during  the  first  part  of  the  century,  they  incurred  spiritual 
penalties  and  were  rarely  put  to  death ;  during  the  second  part  of 
that  century,  and  even  to  the  end  of  the  1100  s,  Catharism  was  even 
tolerated.  Several  Councils  undoubtedly  ordained  measures 
against  the  heretics,  but  it  does  not  seem  that  they  were  seriously 
applied,  and  at  all  events  they  resulted  only  in  the  confiscation  of 
property  and  imprisonment,  not  the  death  penalty.  The  pon- 
tificate of  Innocent  III  (1198)  marked  a  new  phase  in  the  liistory 

180 


Chapter  VI]  FRANCE    IN   THE    LATER   MIDDLE   AGES  [§  39/ 

of  the  movement  against  heresy,  and  inspired  the  crusade  against 
the  Albigenses.  Without  enacting  new  penalties,  it  strove  to  en- 
force existing  laws,  by  stimulating  the  zeal  of  princes,  and  by  caus- 
ing most  of  these  Church  laws  to  be  adopted  also  by  the  cities  in  their 
statutes.  Finally,  in  1209,  the  crusaders  of  the  North,  invading 
the  southern  provinces,  began  to  burn  all  heretics.  To  this  invasion 
we  owe  the  introduction  of  the  penalty  of  burning  in  these  coun- 
tries. From  that  time  on,  burning  became  the  common  punish- 
ment of  heretics  throughout  France. ^^°  Aubry  de  Trois  Fontaines 
gives  us  the  account  of  the  punishment  of  183  heretics  who  were 
burned  at  Mont  Aime  in  the  presence  of  a  large  number  of  priests 
and  an  immense  concourse  of  people. ^^^  As  is  well  known,  Jeanne 
d'Arc  was  also  burned  for  heresy,  on  the  29th  of  May,  1431.  At 
times  a  different  penalty  was  used ;  thus,  in  1381,  Hugucs  Aubriot 
was  condemned  for  heresy  to  spend  his  life  in  a  pit  subsisting  on 
bread  and  water.^^-     But  these  cases  were  exceptions. 

In  the  1200  s  the  climax  of  severity  was  reached  in  punishing  the 
heretics  of  the  South,  —  the  Albigenses.  The  Church  displayed 
a  great  activity,  and  at  its  instigation  royalty  also  adopted  the 
severest  measures.  The  Lateran  Council  had  already  ordered, 
at  the  beginning  of  this  century,  the  extermination  of  heretics; 
their  personalty  was  confiscated  to  the  civic  authorities  (except 
in  case  of  clerical  heretics,  when  it  reverted  to  the  Church). ^^^  In 
France  a  royal  ordinance  was  issued  in  1228  against  the  heretics 
of  Languedoc.^^^  The  following  year  the  Council  of  Xarbonne 
excommunicated  the  Albigenses,  required  the  presence  of  a  priest 
when  a  will  was  executed,  and  appointed  inquisitors  in  all  i)arishes ; 
another  Council  held  at  Toulouse  in  the  same  year  confirmed  the 
Inquisition  and  enacted  the  most  severe  measures  against  heretics.^^^ 

""  Julien  Havel  has  well  shown  this  in  his  memoir  entitled  :  "  L'h^r^sie 
et  le  bras  seculier  au  moyen  age  jusqu'au  Xllle  sieelc".  Paris,  1881. 
However,  he  has  not  perhaps  given  enough  weight  to  Roman  iiilluenee, 
which,  in  time  of  danger,  suggested  to  the  Church  the  idea  of  more  severe 
repression,  extending  the  death  penalty,  and  resulting  in  the  adoption 
of  torture  against  tlie  heretics.  See  on  this  question  an  article  by  Ficher, 
in  the  "Mittheilungen  des  Instituts  für  österreischischen  Geschichts- 
forschungen", 1880,  pp.  177-226,  430;  also  Paul  Meyer,  "La  chanson 
de  la  croisade  contre  les  Albigeois";  Viollet,  "Etablissements  de  Saint 
Louis",  Vol.  I,  p.  2.')2. 

1"  Pertz,  "Scriptores",  Vol.  XXIII,  p.  944,  quoted  by  Viollet,  loc.  cit. 

"2  Isnmhert,  Vol.  VI,  p.  .'jül. 

"'  "Lateran  Council  of  ril."")",  chap.  3,  in  Ilcfclc,  "Conciliengeschichte" 
(French  translation).  Vol.  Vlll,  p.  123;  Labbe,  Vol.  XI,  p.  74,  col.  148. 

ii-'  Isambcrt,  Vol.  I,  p.  230. 

*'*  Isamberl,  Vol.  I,  p.  234.  See  also  an  ordinance  of  April,  1250, 
addressed  to  the  inquisitors :   ibid..  Vol.  I,  p.  254. 

181 


§  :i[)f]  THE    MIDDLE    AGES  [Part  I,  TiTLE  II 

Under  pretext  of  heresy,  all  kinds  of  abuses  seem  to  have  got  a  foot- 
ing?,—  especially  arbitrary  arrests ;  thus,  Letters  of  April  27,  1287, 
enjoined  upon  the  seneschal  of  Carcassonne  to  resist  arrests  made 
under  pretext  of  heresy,  unless  the  crime  were  first  proved.  Begin- 
ning in  the  following  century,  these  severe  measures  revive  in  force. 
No  appeal  is  allowed  from  the  sentences  of  bishops  and  inquisitors, 
either  by  heretics,  or  by  their  abettors  or  accomplices  or  their  de- 
fenders.^^^  The  magistrates  must,  under  pain  of  the  loss  of  their 
offices,  swear  to  expel  heretics  from  their  jurisdiction ;  the  lords 
are  also  under  obligation  to  rid  their  lands  within  a  year  of  these 
criminals,  under  pain  of  confiscation  in  favor  of  the  Catholics. '^^ 
The  "  Etablissements  de  Saint  Louis  "  show  us  the  procedure 
employed  and  the  penalty  usually  pronounced  against  heretics. 
Every  person  suspected  of  heresy  was  to  be  arrested  by  the  secular 
authorities  and  delivered  to  the  bishop ;  the  latter  examined  him 
as  to  his  faith ;  if  the  accused  was  convicted  of  heresy,  the  bishop 
delivered  him  to  the  civil  power,  which  condemned  him  to  death, 
ordinarily  by  fire,  declared  him  infamous,  and  pronounced  the  con- 
fiscation of  his  personalty  in  favor  of  the  lord ;  his  real  estate 
was  respected,  probably  under  the  influence  of  old  Germanic 
regional  Customs.^^^  Finally,  the  houses  serving  as  meeting  places 
for  heretics  were  to  be  razed ;  though  this  practice  was  abolished 
by  Letters  of  October  19,  1378.^^^  These  proceedings  exliibit  the 
allotment  of  jurisdiction  prevailing  between  the  spiritual  and  the 
secular  authorities.  The  Church  claimed  the  right  to  prosecute 
heresy  and  apostasy,  as  well  as  witchcraft,  adultery,  and  usury ;  ^-° 
but  since,  on  principle,  it  could  not  pronounce  the  death  penalty 
and  yet  heresy  merited  it,  it  avoided  the  difficulty  by  delivering 
the  offender  to  the  secular  authority.  The  Church  tried  him  and 
declared  whether  he  was  guilty  of  heresy,  then  it  turned  him  to  the 
secular  authority,  which  undertook  to  sentence  him  to  death  and 
execute  him.^-^ 

""  Year  1298,  Isamhert,  Vol.  II,  p.  718. 

»^  Letter  of  December  15,  1315,  in  Isamhert,  Vol.  Ill,  p.  126. 

'•*  "Etablissements  de  Saint  Louis",  book  I,  chapters  90  and  127 
ed.  Viollet,  Vol.  II,  pp.  147  and  240 ;  "Li\Te  de  jostiee  et  de  plet",  p.  12 
"Aneiennes  coutumes  d'Anjou  et  du  Maine",  B,  no.  94,  Vol.  I,  p.  120 
C,  no.  87,  Vol.  I,  p.  304 ;  E,  nos.  77  and  87,  Vol.  I,  pp.  430  and  435 ;  F 
no.  1365,  Vol.  II,  p.  502 ;  I,  nos.  96  and  106,  Vol.  Ill,  pp.  258  and  267 . 
"Li\Te  des  droiz  et  des  commandemens".  Vol.  I,  no.  255;  Bouteiller, 
"Somme  rural",  book  I,  tit.  28,  ed.  of  1621,  p.  290. 

"9  Isamhert,  Vol.  V,  p.  491. 

■2"  Beaumanoir,  chap.  11,  nos.  2  and  25,  vol.  I,  pp.  157  and  167. 

^^  " EtabUssements  de  Saint   Louis",  loc.  cit.;   Beaumanoir,  chap.  11, 
nos.  2,  12,  25,  Vol.  I,  pp.  157,  162.  167. 

182 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  39/ 

Sorcery,  witchraft,  incantation,  and  other  more  or  less  similar 
acts,  were  considered  as  the  next  most  serious  crimes  against  the 
Church.  During  the  period  in  question  royal  ordinances  had  not 
yet  dealt  with  these  crimes.^^^  Moreover,  there  was  no  accord, 
regarding  these  offenses,  between  the  civil  and  tiie  spiritual  author- 
ities, as  in  the  case  of  heresy.  The  Church  claimed  the  prosecution 
of  sorcery ;  ^^^  but  we  see,  from  certain  cases  tried  before  the  secu- 
lar courts,  that  the  latter  claimed  to  take  cognizance  whenever  the 
sorcery  or  incantation  had  caused  death  or  sickness ;  '-^  under  the 
influence  of  Roman  law  they  had  come,  in  certain  cases,  to  con- 
sider sorcerers  and  soothsayers  as  guilty  of  homicide.^-'  Bouteiller 
shows  unheard-of  severity  against  those  convicted  of  this  crime ; 
they  are  to  be  exposed  on  the  gibbet,  branded  with  hot  iron,  and 
even  burned,  according  to  the  heinousness  of  the  case.^-®  He 
pronounces  the  same  penalty  against  enchanters  and  those  whom 
he  calls  the  invokers  of  devils ;  interpreters  of  dreams  he  would 
subject  to  the  torture  with  iron  broaches.  But  all  these  crimes  he 
places  under  the  jurisdiction  of  the  secular  authority,  not  under 
that  of  the  Church.^^y 

Through  the  Church's  influence,  also,  sodomy  continued  to  be  a 
crime ;  this  was  borrowed  from  Roman  law,  which,  according  to 
certain  writers,  had  been  influenced  by  Hebrew  law ;  ^-*  that 
Roman  law  borrowed  this  crime  from  Hebrew  legislation,  we  do 
not  believe  has  been  pro\'ed ;  but  undoubtedly  the  Church  bor- 
rowed it  from  Roman  law,  and  brought  about  its  acceptance  in  the 
]\Iiddle  Ages.  Here,  as  with  heresy,  the  Church  finds  the  person 
guilty  ;  then  the  secular  authority  pronounces  the  penalty  and  en- 
forces it.  This  penalty  consists,  for  the  first  two  offenses,  in  a  mu- 
tilation ;   but  on  a  further  offense  the  offender  is  burned  alive. ^-'•* 

122  The  first  ordinance  known  against  enchanters,  sorcerers,  and  sooth- 
sayers is  that  of  October  9,  1490;  Isatnhert,  VoL  XI,  p.  190,  also  p.  252. 

'23  Beaumanoir,  chap.  11,  no.  2.5,  Vol.  I,  p.  107. 

12*  "Registre  du  Chatelet",  Vol.  II,  pp.  312  el  seq. 

'25  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  no.  1327,  Vol.  II, 
p.  491. 

126  Bouteiller,  "Somme  rural",  book  II,  tit.  40,  ed.  1621,  p.  148G. 

127  Bouteiller,  "Somme  rural",  book  I,  tit.  39,  ed.  1021,  p.  480. 

12»  Leviticus,  xx,  13.  Cf.  "  Collatio  legum  mosaicarum  et  romanarum  ", 
in  Giraud,  "Novum  Enchiridion",  p.  293. 

'29  "Etablissements  de  Saint  Louis",  l)ook  I.  chap.  127,  where  the  wijrd 
"herite"  does  not  seem  to  be  taken  in  its  ordinary  sense  and  to  signify 
heretic,  but  designates  rather  a  person  guilty  of  sodomy.  See  ViolUt, 
"Etabhssements  de  Saint  Louis",  book  1,  p.  2.')4.  '-Livre  de  jostice  et 
de  plet",  pp.  279  and  280  ;  "Anciennes  coutumes  d'Anjou  et  due  Maine", 
F,  no.  130.5,  Vol.  11,  p.  .502;  Bouteiller,  "Somme  rural",  book  I,  tit.  28, 
ed.  1021,  p.  292  and  the  remarks  of  Charondas,  p.  302. 

183 


§  39/]  THE    MIDDLE    AGES  [Paut  I,  TiTLE  II 

The  other  and  less  liehious  crimes  chiimed  for  the  Church's 
jurisdiction,  bkusphemy,  jukiltery,  and  usury,  are  not  all  necessarily 
religious.  But,  in  view  of  the  numerous  ordinances  enacted  against 
blasphemy  during  the  later  Middle  Ages,  it  may  be  asserted  that 
this  crime  was  of  daily  occurrence,  and  yet  that  neither  the  secular 
authority  nor  the  Church  were  after  all  able  to  repress  \t}^^  The 
treatises  of  the  time  tell  us  that  blasphemy  is  punished  with  less 
severity  than  heresy ;  but  its  punishment  is  severe  enough :  he 
who  has  indecently  blasphemed  against  God  or  the  Virgin  IMary 
is  to  be  fined,  put  in  the  pillory  for  three  days,  with  a  placard 
on  which  his  crime  is  named  in  large  characters,  so  that  every  one 
may  know  of  it,  and  then  he  is  banished  from  the  country. ^'^^ 

There  remains  one  offense  which  was  unquestionably  introduced 
by  the  Church,  by  a  false  interpretation  of  a  passage  from  the 
Gospels,  —  the  crime  of  usury y^"^  Jurisdiction  was  here  con- 
ceded to  both  secular  and  Church  courts,  —  at  least,  according  to 
Beaumanoir ;  ^^^  but  it  may  be  supposed  that  this  double  juris- 
diction came  about  only  slowly,  and  that  the  Church  at  one  period 
had  claimed  for  its  sole  perquisite  the  prosecution  of  this  crime,  but 
merely  failed  to  gain  its  point ;  ^^^  The  kings  in  the  jNIiddle  Ages 
issued  many  ordinances  against  usury ;  ^^^  but  this  crime  has  had  a 

130  -^Ye  note  especially  the  following  ordinances  against  blasphemers  : 
Ord.  of  Phihp  the  Fair  of  1293,  Isambert,  Vol.  II,  p.  692  ;  ord.  of  Charles  VI 
of  May  7,  1397,  Isambert,  Vol.  VI,  p.  777 ;  Letters  of  the  Dauphin  of 
January  8,  1409,  Isambert,  Vol.  VII,  p.  228;  Letters  of  King  Charles  VI 
of  September  7,  1415,  Isambert,  Vol.  VIII,  p.  424;  Letters  of  the  Dauphin 
Regent  of  October  8,  1420,  Isambert,  Vol.  VIII,  p.  648 ;  ordinance  of 
Charles  VII  of  December  1,  1437,  Isambert,  Vol.  VIII,  p.  852. 

'^1  "Registre  criminel  de  Saint-Martin-des-Champs",  p.  102;  Bou- 
teiller,  "Somme  rural",  book  II,  tit.  40,  ed.  of  1621,  p.  1486.  The  roj^al 
ordinances  more  than  once  enacted  different  punishments ;  see  the  ordi- 
nances already  cited. 

"2  See  what  is  said  in  the  writer's  "Elements  de  droit  frangais". 
Vol.  I,  p.  167.  The  Church  no  longer  holds  to-day  that  lending  on  in- 
terest is  an  offense. 

1''  Beaumanoir,  chap.  68,  no.  5,  Vol.  II,  p.  477. 

"^  In  the  1000  s  there  was  in  Anjou  a  mixed  tribunal  for  the  repression 
of  the  crime  of  usury;  see  Viollet,  "Etablissements  de  Saint  Louis", 
Vol.  I,  p.  255. 

"B  Ordinance  of  1268,  Isambert,  Vol.  I,  p.  338 ;  ordinance  of  1274, 
Langlois,  "Regne  de  Philippe  III  le  Hardi",  p.  299;  ordinance  of  1311, 
Isambert,  Vol.  Ill,  p.  11;  declaration  of  December  8,  1312,  Isambert, 
Vol.  Ill,  p.  27;  ordinance  of  July  28,  1315,  Isambert,  Vol.  Ill,  p.  116; 
ordinance  of  February  1318,  Isambert,  Vol.  Ill,  p.  201 ;  ordinance  of 
January  12,  1330,  Isambert,  Vol.  IV,  p.  377 ;  ordinance  of  March  25,  1312, 
Isambert,  Vol.  Ill,  p.  404;  ordinance  of  May  19,  1337,  Isambert,  Vol.  Ill, 
p.  428;  ordinance  of  February  13,  1345,  Isambert,  Vol.  IV,  p.  517;  or- 
dinance of  September  18,  1350,  Isambert,  Vol.  Ill,  p.  573;  ordinance  of 
July  18,   1353,  Isambert,  Vol.  Ill,  p.  679;    ordinance  of   March  1360, 

184 


Chapter  VI]  FRANCE    IN    THE    LATER    MIDDLE    AGES  [§  39/ 

checkered  career,  and  the  very  variabiHty  of  legislation  on  this 
subject  is  a  proof  of  the  mistake  involved  in  penalizing  a  transac- 
tion perfectly  lawful  in  itself.  Thus,  in  certain  cities  (perhaps  by 
virtue  of  local  charter)  lending  at  interest  was  permitted  to  all."'' 
The  ordinance  of  Philip  the  Fair,  of  loll,  while  forbidding  usury, 
permits,  however,  the  lending  on  interest  at  the  fairs  of  Cham- 
pagne and  of  Brie."^  Some  Letters  of  June  2,  1380,  grant  to  five 
financiers  of  the  city  of  Troyes,  the  exclusive  right  to  lend  on 
usury. ^^^  Later,  in  December  1392,  the  same  privilege  is  ac- 
corded for  money  to  three  Lombards  of  the  same  city  for  fifteen 
years.^^^  Again,  an  ordinance  of  March  6,  14üü,  authorizes  all 
inhabitants  of  Tournai  to  practice  usury .^^°  But  on  the  whole 
the  status  of  usurers  was  always  precarious  in  the  Middle  Ages. 
Jews  and  Lombards  were  often  enough  authorized  to  lend  with  in- 
terest ;  and  it  is  curious  that  lending  at  interest,  though  forbidden 
to  the  Jews  among  themselves,  by  the  Old  Testament,  and  also  to 
the  Christians,  according  to  a  false  interpretation  of  the  Gospel, '^^ 
was  thus  authorized  as  between  Jews  and  Christians.  One  may,  to 
be  sure,  explain  this  by  the  circumstance  that  from  the  religious 
point  of  view  they  were  considered  as  strangers  to  one  another ; 
but  the  permission  given  to  the  Lombards  is  more  difficult  to  ex- 
plain, and  can  only  be  attributed  to  the  exigencies  of  commerce. 
However,  both  Jews  and  Lombards  were  continually  subjected  to 
the  most  arbitrary  measures.  In  1270,  they  were  expelled  from  the 
kingdom  ;  ^*-  though  presumably  they  soon  returned,  for  ordinances 
were  issued  against  usury  in  1311,  1312,  1315,  and  1318.^^^  In 
1330,  debts  due  to  usurers  were  reduced  by  one  third.  This  was 
evidently  a  measure  destined  to  prevent  the  ruin  of  dol)tors,  on 
the  theory  that  nothing  is  more  ruinous  than  the  compounding  of 
interest ;  but,  the  higher  the  interest  the  more  ra{)idly  it  compounds, 
and  the  more  danger  a  money-lender  runs  the  higher  is  the  interest, 
so  that,  in  reality,  this  protection  turned  against  the  debtors.'" 
In  1332,  the  king  took  a  wiser  step,  by  fixing  the  rate  of  interest."^ 
But  soon  there  is  a  return  to  even  more  radical  prescriptions :    in 

Isambert,  Vol.  V,  p.  114;  ordinance  of  December  5,  1363,  Isambcrt,  Vol. 
V,  p.  157;   ordinance  of  March  3,  1402,  I.sriinhrrl,  Vol.  VII.  p.  4(),  etc. 

"^  See  Giry,  "Histoire  de  la  villo  et  des  institutions  de  Saint-Oiner", 
p.  296. 

1"  Isambert,  Vol.  Ill,  p.  11.  "8  Ibid.,  Vol.  V.  p.  530. 

>3ä  Ibid.,  Vol.  VI,  p.  715.  '"  Ibid.,  Vol.  X,  p.  574. 

"'  Luke,  vi,  34  and  35. 

1«  Immberl,  Vol.  11,  p.  651.  '"  Ibid.,  Vol.  Ill,  pp.  11,  27,  116.  221. 

'^^  Ordinance  of  January  12,  1330,  Isambert,  Vol.  IV,  p.  377. 

1«  Isambert,  Vol.  IV,  p.  404. 

185 


§  39/]  THE    MIDDLE    AGES  [Paut  I,  TiTLE  II 

1337,  (leV)tors  are  f()r})i(l(Iou  to  j)iiy  what  they  owe  to  Lombard 
usurers,  and  are  eujoiiied  to  record  the  amount  of  their  debts  ;  '^^  in 
1350,  the  debts  due  to  the  Lombards  are  confiscated  in  favor  of  the 
king,  the  hitter  to  collect  the  capital,  but  to  remit  to  the  debtors 
the  accumulated  interest;  ^'^'^  in  1363,  is  proclaimed  a  confiscation 
of  the  property  of  Italians,  Lombards,  ultramontanes,  and  other 
usurers;  ^'^^  in  135(3,  the  right  of  the  Lombards  to  prosecute  their 
debtors  is  suspended;  ''^  in  1303,  debts  due  to  the  Lombards  are 
annulled,  except  those  already  protected  by  final  judgments ;  ^^° 
in  1402,  a  commission  is  appointed  to  discover,  try,  and  punish 
usurers.  ^'^ 

With  the  progress  of  commerce,  the  authorities  came  to  be  less 
severe ;  the  right  to  lend  on  usury  was  more  easily  and  more  widely 
granted.  But  usury  continued,  nevertheless,  to  be  considered  as 
a  crime.  The  Custumals  mention  the  penalties  for  those  who 
practiced  it.  According  to  the  "  Etablissements  de  I'Echiquier 
de  Normandie  ",  whoever  was  convicted,  after  his  death,  on  the 
oath  of  twelve  neighbors,  of  having  lent  money  with  interest  during 
the  year  and  day  before  his  death,  suffered  confiscation  of  his  chat- 
tels.^''^  The  confiscation  of  personal  property  was  indeed  the  pen- 
alty generally  incurred  by  the  usurer,  but  as  it  was  inflicted  only 
after  his  death,  it  was  in  reality  the  heirs  that  were  punished ;  at 
times,  however,  the  penalty  was  pronounced  while  the  offender 
was  still  living.  His  property  went,  traditionally,  to  the  feudal 
lord ;  but  the  king  laid  claim  to  it,  at  an  early  period.^'^^  The 
secular  authorities  also  claimed  (as  already  noted)  jurisdiction  over 
trials  for  usury,  even  against  clerics,  in  spite  of  the  protestations 
of  the  Church  ;  their  claim  was  based  on  the  ground  that  it  was  a 
matter  of  contract.  Nevertheless,  the  penalties  inflicted  upon  usur- 
ers were  spiritual  as  well  as  temporal,  —  excommunication,  exclu- 
sion from  the  cemetery,  and  consequently  refusal  of  confession  and 
the  sacraments.  In  certain  regions,  custom  imposed  on  the  usurer, 
while  alive,  instead  of  the  confiscation  of  personal  property,  a  fine 

"6  Isamhert,  Vol.  IV,  p.  428.  i"  Ibid.,  Vol.  IV,  p.  573. 

»8  Ibid.,  Vol.  IV,  p.  679.  "3  Ibid.,  Vol.  IV,  p.  841. 

150  Ibid.,  Vol.  V,  p.  157.  1='  Ibid.,  Vol.  VII,  p.  46. 

15^  "Etablissements,  coutumes,  assises  et  arrets  de  I'Eehiquier  de 
Normandie",  ed.  Marnier,  p.  34. 

15'  The  definition  of  usury  need  not  here  be  gone  into ;    it  belongs 
rather  under  the  history  of  contract;    cf.  Beaumanoir,  chap.  68,  nos.  2 
et  seq.,  Vol.   II,  p.  476;   "Aneiennes  coutumes  d'Anjou  et  du  Maine" 
A,  no.  21,  Vol.  I,  p.  47  ;  B,  no.  95,  Vol.  I,  p.  120 ;  C,  no.  88,  Vol.  I,  p.  304 
F,  nos.  572,  583  to  587,  Vol.  II,  pp.  212,  216;  K,  no.  212,  Vol.  IV,  p.  106 
L,  no.  445,  Vol.  IV,  p.  327. 

186 


Chapter  VI]  FRANCE    IN    THE    LATER   MIDDLE    AGES  [§  39j 

in  favor  of  the  bishop,  and  in  addition  })anishnicnt  by  his  feiuhil  lord. 
This  we  learn  from  Bouteiller's  "  Somme  rural  "  where  he  points 
out  the  advantages  of  forbidding  usury,  for  otherwise  the  people 
would  be  encouraged  to  idleness. ^-^  But  this  view ,  by  the  time  of 
Charondas,  his  annotator,  ceased  to  commend  itself ;  the  latter 
points  out  that  bankers  are  allowed  to  lend  at  interest,  and  that 
thus  they  render  useful  service  and  are  even  welcome  in  France. 

»Smcic^e  was  regarded  (jierhaps  under  the  influence  of  the  Church) 
as  a  crime.  Self-killing  had  been  punished  in  Greece,  and  at  times 
in  Rome,  when  done  to  escape  criminal  i)r()ccedings,  was  treated 
as  an  ofTense.^'^'  On  the  other  hand,  in  early  France,  suicide  was 
not  included  by  the  Church  in  its  claim  of  jurisdiction,  but  was 
left  to  secular  justice. ^'^  Proceedings  were  l)r()ught  against  the 
corpse  of  the  suicide,  whether  his  motive  had  been  to  escape  crimi- 
nal justice  or  any  other  reason.  Suicide  was  excused  only  when 
committed  in  a  moment  of  mental  alienation,  or  as  a  result  of  in- 
tense sorrow ;  but  in  a  doubtful  case  neither  was  presumed.  On 
a  verdict  of  guilty,  the  court  pronounced  confiscation  of  personal 
property  in  favor  of  the  lord  or  of  the  king.^'^  The  custom  long 
was  to  order  the  corpse  of  the  suicide  to  be  hanged  and  then  de- 
stroyed. But  the  later  treatises  speak  only  of  the  confiscation  of 
personal  property;  whence  may  be  supposed  that  the  hanging  of 
the  corpse,  a  practice  both  odious  and  absurd,  had  fallen  gratlually 
into  desuetude.^^^ 

§  399.  Punishments.  —  In  the  ^liddle  Ages  punishments  are 
not  inflicted  to  reform  the  ofl'ender,  l)ut  rather  to  secure  the  com- 
munity's vengeance,  and,  most  of  all,  to  intimidate  evil-doers. 
The  notion  of  satisfaction  for  injury,  very  general  at  the  beginning 
of  the  Germanic  folk-law  period,  had  almost  entirely  disappeared. 
The  leniency  of  the  Frankish  laws  toward  criminals  —  a  leniency 
sometimes  carried  to  excess  —  had  ceased  to  play  any  ai)i)rcciable 


15^  Bouteiller,  "Somme  rural",  book  II,  tit.  11,  oil.  1021.  p.  1295. 

'^*  See  for  example,  Titus  Livi/,  XVI,  1. 

'^*'  "Aneiens  coutumiers  dv  IMcardie",  ed.  Marnier,  p.  ()0. 

'^^  See  on  these  various  points  Bcnumnnoir,  chap.  (10,  nos.  0,  10,  12, 
13,  Vol.  II,  pp.  487  el  seq.;  "Ilegistre  do  Saint-Mart iii-dos-riiamps", 
pp.  113,  193,  219;  Bouteiller,  "Sommo  rural",  book  I.  tit.  :i9,  p.  4tt8. 
Cf.  Bregenult,  "Proces  oontro  los  oadavros  dans  I'ancit'n  droit",  in  the 
"Nouvolle  Revue  historiquo  do  droit  fran^ais  et  elrangor",  year  1S79, 
Vol.  Ill,  p.  619. 

»^«"Registre  eriminel  de  Saint-Martin-des-Champs",  pp.  112  and 
218;  "Aneionnes  ooutumos  d'Anjou  et  du  Maine",  B,  no.  97.  Vol.  1, 
p.  121;  I,  no.  94,  Vol.  Ill,  p.  256;  Bouteiller,  "Somme  rural",  book  II, 
tit.  40,  ed.  1621,  p.  1490. 

187 


§  39{/]  THE  MIDDLE  AGES  [Part  I,  Title  II 

part ;  punishments  had  l)ec()me  severe,  at  times  even  cruel.  Cer- 
tain jurists,  indeed,  while  conceding  that  the  punishment  must  be 
proportionate  to  the  offense,  deprecate  an  extreme  severity;  in- 
fluenced by  Roman  law,  they  advise  the  judge  to  take  into  con- 
sideration the  circumstances  of  the  crime.^  The  judge  did, 
indeed,  enjoy  apparently  a  very  extensive  power  in  the  de- 
termination of  the  penalty.  Xo  maximum  nor  minimum  ham- 
pered him.  But  in  reality  he  had  not  a  large  range  of  dis- 
cretion. The  penalty  of  imprisomnent  was  almost  unknown ; 
for  the  most  serious  crimes  almost  always  the  death  penalty  was 
prescribed ;  he  had  only  a  choice  between  the  different  kinds 
of  painful  punishments.  Fines  alone  were  often  left  entirely 
to  his  discretion.  Whenever  a  royal  ordinance,  the  regional 
Custom,  or  even  a  seigniorial  regulation  fixed  a  punishment  for 
an  offense,  the  judge  was  naturally  bound  to  apply  it,-  without 
discretionary  power.^  All  the  jurisdictions  could,  in  theory 
of  law,  make  use  of  the  punishments,  even  the  seigniorial 
tribunals  and  the  town  courts.^  The  Custumals  often  carefully 
enumerated  these  punishments.-^ 

Undoubtedly  the  most  common  punishment  was  death.  It  was 
used  for  almost  all  serious  crimes,  with  remarkable  prodigality. 
The  Custumals  do  not  complain  of  this  ;  and  if  they  sometimes  re- 
fer to  it,  they  rather  approve  of  cruelties  intended  to  intimidate 
the  people.  (It  is  notable  however,  that  the  "  Livre  de  jostice  et 
de  plet  ",  evidently  influenced  by  the  Church,  in  a  passage  insisting 
that,  before  putting  a  man  to  death,  every  effort  should  be  made 
to  discover  the  truth,  criticizes  the  death  penalty  as  open  to  the 
charge  of  unmaking  what  God  had  made.)^    This  punishment  was 

*  See,  for  example,  "Livre  de  jostice  et  de  plet",  pp.  277  et  seq.;  Bou- 
teiller,  "Somme  rural",  book  I,  Vol.  29,  ed.  1621,  p.  305. 

2  It  was  conceded  that  the  lord  of  the  manor  could  fix  punishments : 
"Anciennes  coutumes  d'Anjou  et  du  Maine",  I,  no.  9,  Vol.  Ill,  p.  390. 

*  "Li\Te  des  droiz  et  des  eommandemens",  no.  787. 

^  "Registre  criminel  de  Saint-Martin-des-Champs",  p.  93.  The 
aldermen  of  Saint-Omer  could  pronounce  the  penalties  of  death,  mutila- 
tion, banishment,  pilgrimage,  burning  of  the  hand,  or  the  "amende 
honorable",  not  to  speak  of  the  less  severe  punishments,  such  as  fines; 
see  Giry,  "Histoire  de  la  ville  de  Saint-Omer",  pp.  218  to  225. 

*  See,  for  example,  "Li\Te  de  jostice  et  de  plet",  pp.  277  et  seq.:  Beau- 
manoir,  chap.  30,  Vol.  I,  pp.  410  et  seq.:  "Anciennes  coutumes  d'Anjou 
et  du  Maine",  F,  nos.  363  et  seq..  Vol.  II,  p.  144;  Bouteiller,  "Somme 
rural",  book  I,  Vol.  29,  ed.  1621,  p.  304 ;  book  II,  Vol.  40,  p.  1464. 

^  "Livre  de  jostice  et  de  plet",  p.  113  :  "And  if  any  one  offends  before 
the  people  and  absconds  and  through  malice  does  not  wish  to  come  for- 
ward, he  shall  have  no  longer  term  than  the  time  of  his  absence ;  but 
he  shall  have  the  term  of  the  punishment,  namely,  of  three  assizes ;   for 

188 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  39^ 

imposed  for  murder,  homicide,  poisoning,  rape,  abduction,  arson, 
and  for  the  most  serious  thefts,^  serious  either  because  of  the  im- 
portance of  the  objects  stolen  or  because  committed  by  several 
persons.^  The  methods  of  putting  to  death  varied  ;  in  general 
(probably  under  the  influence  of  Germanic  traditions),  they 
hanged  the  men  and  burned  or  buried  alive  the  women.  But  this 
distinction  was  customary  only,  not  mandatory ;  there  are  in- 
stances of  men  being  buried  alive  for  the  crime  of  theft,^  and  of 
men  being  burned  for  rape  or  bestiality.^"  Counterfeiters  were 
thrown  into  boiling  water."  In  certain  specially  heinous  cases, 
the  death  penalty  was  preceded  by  an  ignominious  torture 
or  even  a  mutilation;  thus,  often  for  abduction,  and  for  all 
the  worst  crimes,  notably  that  of  "  lese  majeste  ",  the  offender 
was  dragged  around  the  locality  before  being  hanged.^-  At  times 
also,  for  heinous  crimes,  the  offender,  instead  of  being  hanged,  was 
decapitated  or  quartered. ^^  The  punishment  of  death  by  l)reak- 
ing  on  the  wheel  appeared  very  late  in  P>ance ;  we  do  not  find  it  in 
the  early  Custumals ;  Bouteiller  tells  us  only  that,  in  his  time,  in 
the  region  of  Hainaut,  the  abducter,  instead  of  being  hanged,  was 
burned  alive. ^^  Up  to  the  end  of  the  1300  s,  it  was  the  cruel  custom 
to  refuse  to  the  condemned  the  consolation  of  the  last  confession ; 
but  an  ordinance  of  Charles  VI  of  February  12,  139C,  reformed 
this.i^ 

Next  to  the  penalty  of  death  came  that  of  mutilation.  It  \'aried 
infinitely  in  its  application,  but  was  always  inconceivably  cruel. 
This  punishment  had  been  borrowed,  for  the  most  part,  from  old 
Germanic  usages.     In  theft,  the  system  of  Capitulary  laws  had  iii- 

we  must  bear  much  and  wait  before  putting  a  man  to  death ;  for  it  is  a 
serious  thing  to  unmake  what  God  has  made  and  to  do  what  he  does  not 
wish  done." 

^"Etablissements  de  Saint  Louis",  book  I,  chap.  35;  "Livre  de 
jostice  et  de  plet",  p.  280;  Beaumanoir,  Chap.  30,  nos.  2  to  13,  Vol.  I, 
pp.  410  et  seq.;  "Aneiennes  eoutumes  d'Anjou  et  du  Maine",  E,  nos.  77, 
80  to  82,  85  to  87,  91,  92,  95,  98,  99,  104,  105,  Vol.  I,  pp.  430  cl  scq. :  F,  nos. 
1363  to  1388,  Vol.  II,  pp.  502  et  seq.:  "Livre  des  droiz  et  des  eomniande- 
mens",  nos.  347  et  seq.;  "  Registre  eriminel  de  Saint-Martin-di's-Cliamps", 
pp.  xcii  et  seq.  Cf.  Wilda,  "Das  Strafreelit  der  (u'rniaiuMi ",  p.  498. 
Beaumanoir  cites  the  example  of  a  woman  who  was  burned  for  having 
murdered  her  husband,  chap.  69,  no.  16,  Vol.  II,  p.  491. 

^  "Registre  criminel  de  Saint-Martin-des-Champs",  pp.  xevii,  xcviii. 
cxi.  "  Ibid.,  pp.  xeiv  and  exi. 

1"  Ibid.,  pp.  xciv  and  cxi.        "  Ibid.,  p.  226.  '-  Ibid..  pp.  88  and  121. 

"  "Aneiennes  eoutumes  d'Anjou  vl  du  Maine",  F,  no.  13(53  ct  seq.. 
Vol.  II,  pp.  502  et  SC7.,  giving  an  enumeration  of  all  the  principal  cases 
incurring  the  death  penalty  and  its  various  modes  of  application. 

"  Bouteiller,  "Somme  rural",  book  I,  Vol.  39,  ed.  1021,  p.  477. 

1*  Isambert,  Vol.  VI,  p.  775. 

189 


§39^]  THE  MIDDLE  AGES  [Part  I,  Title  II 

flicted  for  a  first  offense  mutilation,  the  death  penalty  only  in  case 
of  a  third  offense.^^  Sodomy  also,  for  the  two  first  oftenses,  was 
punished  by  mutilation. ^^  By  the  law  of  the  Custumals,  one  w-ho  laid 
liands  on  his  lord  had  his  hand  cut  off ;  ^^  one  who  used  false  meas- 
ures lost  his  thumb. ^^ 

The  punishment  of  whipping  was  rarely  applied.  Most  fre- 
quently reserved  for  children,  it  was  inflicted  occasionally  upon 
adults,  for  example,  for  unlawful  blows,  or  for  false  witness  in 
minor  matters.^" 

Among  the  other  severe  punishments  occur  the  pillory  and  the 
hrand.  The  pillory,  or  "  carcan,"  consisted  in  exposing  a  man  to 
the  public  in  a  more  or  less  disgraceful  position.  This  punish- 
ment was  especially  used  for  blasphemers,  in  certain  cases  for  for- 
gers. Beaumanoir  tells  us  that  the  false  witness  is  punished  by 
a  long  imprisonment,  by  the  pillory,  and  by  a  discretionary  fine.^^ 
An  edict  of  King  Philip  VI  of  1347,  required  that  the  blasphemer 
be  put  in  the  pillory,  and  permitted  any  one  to  throw  mud  or  other 
filth  in  his  face.^^  For  sundry  crimes  the  offender  was  branded 
with  hot  iron  on  the  cheek.^^ 

Banishment  and  imprisonment  were  much  less  severe.  Thus, 
banishment  was  applied  in  the  least  serious  cases,  such  as  petty 
theft,  begging,  and  default  in  a  criminal  case.  The  banished  party 
had  only  to  leave  the  territory  of  the  jurisdiction  pronouncing  the 
punishment.  Nevertheless,  it  involved  (like  the  preceding  punish- 
ments) confiscation  of  the  property  to  the  lord.     One  who  wilfully 

1«  Capit.  of  779,  Pertz,  "Leges",  I,  38.  Cf.  "Etablissements  de  Saint 
Louis",  book  I,  chap.  32;  "Cartulaire  de  Kotre-Dame  de  Paris",  Vol. 
Ill,  p.  274;  "Registre  criminel  de  Saint-IMartin-des-Champs",  pp.  e, 
ci,  221;  "Couturae  de  Touraine-Anjou",  no.  22;  "Anciennes  coutumes 
d'Anjou  et  du  Maine",  E,  no.  1379,  Vol.  II,  p.  505. 

1^  See,  for  example,  "Livre  de  jostiee  et  de  plet",  p.  279. 

la  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  no.  1372,  Vol.  II, 
p.  514. 

19  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  nos.  1392  and  1393, 
Vol.  II,  p.  507. 

2"  "Registre  criminel  de  Saint-Martin-des-Champs",  p.  ciii ;  "An- 
ciennes coutumes  d'Anjou  et  du  Maine",  F,  no.  1386,  Vol.  II,  p.  506. 
In  serious  cases  false  witnesses  were  hanged. 

21  Beaumanoir,  chap.  30,  nos.  45  et  seq..  Vol.  I,  p.  424. 

22  We  must  not  confuse  with  the  pillory  the  forked  gibbets,  that  is, 
posts  or  columns  supporting  blocks  of  wood,  to  which  were  bound  the 
criminals  who  had  just  been  hanged  or  strangled.  These  forked  gibbets 
were  a  sign  of  "high  justice",  as  a  privilege  of  the  lords  or  of  the  munic- 
ipalities. See  "Registre  criminel  de  Saint-Martin-des-Champs",  pp. 
cii,  cxii  et  seq.,  where  will  be  found  details  on  the  gibbet  of  Paris.  Cf. 
Lauricr,  "Foiirches  et  pilori";  Flammermont,  "Histotre  des  institutions 
municipales  de  Senlis",  p.  25. 

23  Bouteiller,  "Somme  rural",  book  II,  tit.  40,  ed.  1621,  p.  1494. 

190 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  39<? 

harbored  under  this  roof  an  outlaw  incurred  a  discretionary  fine, 
and  his  house  was  demohshed  by  order  of  court.'-' 

Imprisonment  was  at  this  period  not  regarded  as  genuinely  a 
punishment.  ^Mostly  it  was  a  means  of  securing  the  accused's  ap- 
pearance in  a  criminal  case ;  moreover,  to  the  same  end,-'  they  put 
the  plaintiff  also  in  prison ;  and  those  also  who  could  not  pay  fines 
imposed  ;  but  in  this  case  it  was  rather  an  imprisonment  for  debt.-^ 
There  was  also,  in  England  and  in  certain  parts  of  France,  notably 
in  Normandy,  an  imprisonment  "  forte  et  dure  ",  which  was,  how- 
ever, more  a  means  of  indirect  restraint  than  a  punishment ;  it  was 
inflicted  pending  trial,  and  never  for  one  who  had  already  been  con- 
victed.-" The  treatises  also  inform  us  that  there  were  prisons  for 
the  confinement  of  prisoners  of  war.-^  And  it  is  also  true  that  in 
certain  cases,  very  rare  however,  imprisonment  appears  to  have 
been  a  real  punishment.  Beaumanoir  says  so  plainly  for  false 
Avitness,  adding  that  if  a  fine  is  inadequate  imjirisonmcnt  may  be 
added.-^  Are  we  to  infer  that  there  were  several  kinds  of  prisons? 
One  might  think  so,  from  a  passage  in  the  "  Li  vre  de  jostice  et  de 
plet."  ^°  Undoubtedly  whoever  possessed  the  right  to  do  justice 
had  a  prison.  Even  monasteries  had  them,  not  only  for  the  exer- 
cise of  their  secular  jurisdiction,  but  also  by  virtue  of  spiritual  au- 
thority;   monks  sentenced  to  oblivion  were  confined  in  them  till 

2*  Beaumanoir,  chap.  30,  no.  36,  Vol.  I,  p.  422;  "Aneiens  eoutumicr- 
de  Pieardie",  ed.  Marnier,  pp.  46  and  51;  "Registre  criminel  de  Saints 
Martin-des-Champs",  pp.  eiv  el  seq.;  "Anciennes  coutumes  d'Anjou 
et  du  Maine",  F,  no.  1273,  Vol.  II,  p.  474.  Cf.  F,  no.  1438,  Vol.  11,  p. 
517,  for  cases  where  one's  goods  can  be  returned  to  him. 

25  See  "Etablissements  de  Saint  Louis",  book  1,  chap.  104;  '"Livrc 
des  usaiges  et  anciennes  coustumes  de  la  conte  de  Guynes",  no.  333,  p. 
169;  "Livre  des  droiz  et  des  commandemens",  no.  257,  Vol.  1,  p.  410; 
"Grand  coutumier  de  Xormandie",  chap.  76,  ed.  Gruchy,  p.  ISO. 

26  "Registre  criminel  de  Saint-Martin-des-Champs",  pp.  ex,  130  ami 
199. 

"  In  Normandy,  imprisonment  "forte  et  dure"  implied  that  a  person 
charged  by  public  rumor  was  not  also  a  defendant  on  a  charge  brought 
by  an  individual;  he  was  none  the  less  put  in  prison,  and  to  make  him 
consent  to  examination  he  was  placed  in  close  confinement  ("dure  prison"), 
"with  little  to  eat  and  drink";  but  this  punishment  could  not  hist  niore 
than  a  year  and  a  day.  See  what  is  said  on  lliis  point  in  tin-  writer's 
"Histoire  du  droit  et  des  institutions  de  1' Angle terre".  Vol.  Ill,  pp.  605 
el  seq.  Cf.  "Grand  Coutumier  de  Normandie",  chap.  68,  ed.  Griichy, 
p.  167. 

2*  "Livre  de  jostice  et  de  plet",  p.  119. 

"  Beaumanoir,  chap.  30,  nos.  19,  45  el  s:q..  Vol.  I.  pp.  41(>  and  424. 

3"  "Livre  de  jostice  et  de  plet",  p.  119 :  "Thus  the  pri.soner  i.s  helped  : 
the  name  prison  applied  to  the  prison  of  a  great  lord,  the  i)risons  for 
thieves,  the  prison  for  enemies."  For  the  privih-gcs  enjoyed  by  cirtain 
prisoners,  especially  as  to  prescription.  See  "Anciennes  coutumes  d'An- 
jou et  du  Maine",  F,  nos.  865,  1081,  1142,  1143,  Vol.  11,  pp.  311,  409. 

191 


§  393]  THE    MIDDLE    AGES  [Part  I,  TiTLE  II 

their  death.  But  the  royal  power  did  not  concern  itself  with  pris- 
ons until  a  late  period,  and  then  at  first  only  with  certain  ones, 
notably  those  of  Paris.  —  The  information  that  has  come  down 
to  us  justifies  the  assertion  that  prisons,  even  in  the  Middle  Ages, 
were  already  places  of  debauchery  and  cruelty,  whence  the  ac- 
cused or  the  condemned  came  out  more  perverted  than  when  they 
had  entered.^^ 

The  pecuniary  penalties  of  the  Middle  Ages  consisted  chiefly  in 
total  or  partial  confiscation  and  in  various  amounts  of  fines.  Con- 
fiscation was  sometimes  a  principal,  sometimes  a  secondary  penalty. 
In  some  cases  it  extended  only  to  certain  kinds  of  property,  in  others 
to  the  party's  whole  estate.  A  great  diversity  of  practice  appears 
in  the  regional  Customs.  But  they  commonly  limited  confisca- 
tion to  personal  property ;  this  was  the  general  system.^-  But  this 
might  be  accompanied  by  various  sorts  of  harm  inflicted  on  landed 
property ;  houses  were  burned  or  demolished,  meadows  and  fields 
upturned,  vineyards  uprooted,  etc. ;  the  land  afterwards  to  be  re- 
stored to  the  offender's  family.  —  This  confiscation  of  personal 
property,  with  devastation  of  landed  property,  was  the  regular 
accompaniment  of  a  sentence  to  a  capital  punishment ;  for  this 
involved  the  "  putting  outside  the  law",  or  what  w^e  would  call  to- 
day civil  death.^^  It  must  be  remembered,  however,  that  confisca- 
tion of  fiefs  was  subject  to  special  rules  of  feudal  law.  A  general 
confiscation  of  property,  personal  and  real,  is  not  prescribed  in  the 
regional  Customs  ;  it  is  found  only  for  heresy  or  for  "  lese  majeste  " 
in  Anjou  and  Maine.^^     In  the  earldom  of  Flanders  it  was  limited 

äi  See,  on  the  prisons  of  Saint-Martin-des-Champs,  "Registre  criminel 
de  Saint-Martin-des-Champs",  p.  cxix.  For  the  ordinances  regulating 
prisons,  see  ordinance  of  December  24,  1398,  Isambert,  Vol.  VI,  p.  826 ; 
April  1410,  Isambert,  Vol.  VII,  p.  230;  regulation  of  May  1425,  Isambert, 
Vol.  VIII,  p.  698 ;  ordinance  on  the  police  of  the  prisons  of  Paris,  October 
1485,  Isambert,  Vol.  XI,  p.  147.  Cf.  Letters  of 'King  John  of  1351,  de- 
claring that  the  abbots  and  superiors  shall  visit  and  console  t^\ice  a  month 
in  their  prison  the  monks  condemned  to  oblivion :  Isambert,  Vol.  IV,  p, 
673.  On  the  Chatelet  prison,  see  Fagniez,  "Fragment  d'un  repertoire 
de  jurisprudence  parisienne  au  XVe  sieele." 

ä-  Beaumanoir  devoted  an  entire  chapter  to  this  distinction ;  chap.  23, 
Vol.  I,  p.  332. 

3^  De  Fontaines,  "Conseil",  pp.  292  and  483;  "Etablissements,  cou- 
tumes,  assises  et  arrets  de  Normandie",  ed.  Marnier,  p.  77;  "Anciennes 
coutumes  d'Anjou  et  du  Maine",  F,  nos.  1307,  1364  et  seq.,  1433  et  seq.. 
Vol.  II,  pp.  484,  502,  515 ;  L,  nos.  116  et  seq.,  Vol.  IV,  p.  196.  The  alder- 
men of  certain  cities  had  the  right  to  pronounce  this  penalty  of  devasta- 
tion and  house-burning  on  those  who  were  "put  outside  the  law";  see 
Giry,  "Histoire  de  la  ville  et  des  institutions  de  Saint-Omer",  pp.  218  to 
225. 

^*  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  no.  1433,  Vol.  II, 
p.  515. 

192 


Chapter  VI]  FRANCE    IN    THE    LATER   MIDDLE    AGES  [§  39^ 

to  five  crimes  :  ^•''  treason  to  the  liege  lord,  flight  in  a  l)attle  against 
unbeHevers,  participation  in  an  insurrection,  lieresy,  and  suicide  ;'^^ 
and  even  in  these  cases,  enough  must  be  reserved  to  support  the 
offender's  wife  and  children  and  pay  his  debts ;  the  remainder 
went  to  the  lord/^^  Bouteiller  tells  us  that  in  the  territory  of  ]\Ior- 
tagne,  on  the  Escaut,  confiscation  had  never  been  sanctioned,  even 
for  personal  property,  in  the  case  of  the  death  penalty ;  for  then, 
indeed  (he  says),  the  punishment  would  fall  on  the  heirs  rather 
than  on  the  criminal  himself.  In  certain  cases,  very  rare  however, 
confiscation  of  personalty  or  demolition  of  the  house  was  inflicted 
although  there  had  been  no  capital  crime  committed.  Thus,  he 
who  died  while  practicing  usury  incurred  confiscation  of  personalty ; 
and  Beaumanoir  informs  us  that  if  a  person  shelters  an  outlaw,  he 
is  punished  by  a  discretionary  fine  and  his  house  demolished.^^  — 
Finally,  in  many  cases,  there  might  be  a  mere  partial  confiscation,  — 
usually  of  the  subject  of  the  offense,  as,  the  merchandise  sought 
to  be  smuggled  without  paying  duty.'^^ 

On  the  other  hand,  the  severity  of  the  letter  of  the  mediexal 
law  was  often  lessened  in  practice,  and  even  by  royal  ordinances. 
The  king,  when  he  was  the  beneficiary  of  a  general  confiscation, 
often  gave  back  a  part  of  the  estate  to  the  deceased's  relatives."*" 
The  practice  of  laying  waste  the  fields  and  destroying  or  burning 
the  houses  of  those  "  put  outside  the  law  "  fell  into  desuetude  in 
more  than  one  locality.  Letters  of  Charles  V,  of  June,  1366, 
abolished  in  Saint-Amand-en-Puele  the  custom  of  burning  the 
houses  of  capital  offenders,  by  permitting  the  family  to  purchase 
immunity."*^ 

Fines  became  less  harsh,  without  the  need  of  enactments  to  that 
end.  For  fixing  the  fines,  the  amounts  used  in  earlier  times  had 
been  preserved  of  record  and  were  used  as  precedents ;  so  that,  as 
money  diminished  notably  in  value,  this  alone  produced  an  appre- 
ciable diminution  of  the  penalty.     For  example,  in  the  Frankish 

35  Bouteiller,  "Somme  ruralc",  book  II,  Vol.  15,  ed.  1621,  p.  783. 

'«  Beaumanoir  speaks  also  of  {^fciicral  confiscation  in  case  of  suicide, 
chap.  69,  no.  9,  Vol.  II,  p.  4S7. 

"  The  early  regional  Customs  of  Anjou  and  of  Maine  prescribe,  also, 
that  he  who  profits  by  the  confiscation  shall  pay  the  debts;  that  was  evi- 
dently a  principle  of  common  law;  see  "Anciennes  coutumes  d'Anjou 
et  du  Maine",  F,  no.  1166,  Vol.  II,  p.  442. 

3*  Beaumanoir,  chap.  30,  no.  36,  Vol.  I,  p.  422. 

'"  "Livre  des  droiz  et  des  commandemens",  no.  259. 

^0  See,  for  example,  the  measures  taken  in  favor  of  certain  relatives  of 
Pierre  de  la  Broce,  in  Langlois,  "Le  re^jne  de  Philippe  III",  p.  32,  note  3. 

"  Immbert,  Vol.  V,  253. 

193 


§  ;i<)f/]  THE  MIDDLE  AGES  [Part  I,  Title  II 

epoch  a  j)eualty  of  sixty  sous  had  been  the  typical  royal  fine  in- 
curred for  violating  the  royal  ban ;  there  was  also  a  minimum 
fine,  also  typical,  but  varying  according  to  the  regional  or  folk- 
law under  wliich  the  ofi'ender  lived."^^  Now  we  find  also  in  the 
feudal  period  these  two  common  fines,  the  one  heavy,  the  other 
light ;  the  first  is  still  called  "  the  fine  of  sixty  sous,"  the  second, 
which  varies  according  to  localities,  is  very  often  of  five  sous,  and 
is  called  in  the  texts  simply  "  fine  "  ("  amende  ")  or  "  gage  de  la 
loi,"  that  is,  security  required  by  local  custom.  Numerous 
texts  of  the  Custumals  (too  tedious  to  cite)  speak  of  this  "  fine 
of  sixty  sous  " ;  it  continued  to  be  a  very  frequent  one,  even  in 
the  latest  Custumals  of  the  Middle  Ages,  for  example,  in  the 
"  Somme  rural  "  of  Bouteiller,  and  it  persisted  to  the  end  of  the 
Old  Regime  in  many  regions.'*"' 

Independent  of  these  two  general  fines  (the  one  of  sixty  sous, 
or  heavy  fine,  the  other  of  five,  six,  or  seven  sous,  according  to  the 
regional  Customs  and  called  "  amende  de  loi  "),  there  were  other 
pecuniary  penalties  more  or  less  severe,  but  varying  greatly  accord- 
ing to  the  regional  Customs.  In  many  cases  the  amount  w^as 
purely  in  discretion  ;  the  guilty  person  was  deemed  to  be  "  in  miseri- 
cordiam  regis  ",  and  the  fine  could  be  more  or  less  than  sixty  sous 
according  to  the  pleasure  of  the  judge.  For  instance,  according 
to  Beaumanoir,  the  amount  was  discretionary  for  the  offender  who 
used  violence  in  court,  or  who  escaped  after  arrest  for  debt,  or  who 
sheltered  in  his  house  a  convict  "  put  outside  the  law,"  or  who 
bore  false  witness,  etc.'^  According  to  the  early  regional  Customs 
of  Anjou  and  of  INIaine,  the  discretionary  fine  was  applicable  to 
the  plaintiff  in  a  personal  property  case  who  relinquished  his  suit, 

^-  See,  for  example,  Boretius,  "Beiträge  zur  Capitularienkritik",  pp. 
159  and  167;    c/.  "Leges",  I,  227. 

"^  See,  for  exainple,  Beaumanoir,  chap.  30,  nos.  78,  88  el  seq..  Vol.  I, 
pp.  432  and  444 ;  according  to  the  first  of  these  texts,  he  who  injures  the 
grain  is  liable  only  to  a  fine  of  five  sous.  See  also  in  regard  to  fines, 
"Livre  de  jostice  et  de  plet",  pp.  278  et  seq.;  on  the  fine  of  sixty  sous,  or 
heavy  fine,  "Anciennes  coutumes  d'Anjou  et  du  Maine",  F,  nos.  1398, 
1401  et  seq.,  1412  et  seq.,  1424,  1429,  Vol.  II,  pp.  .508,  509,  511,  513,  514. 
The  early  regional  Customs  of  Anjou  and  of  Maine  speak  also  of  the 
"amende  de  loi",  which  in  these  regional  Customs  was  of  seven  sous  and 
six  deniers ;  it  was  imposed  especially  upon  those  who  did  not  pay  their 
quit-rents  or  other  money  dues,  and  in  certain  lawsuits  upon  the  losing 
party,  etc.;  ibid.,  B,  no.  171,  Vol.  I,  p.  172;  C,  no.  160.  Vol.  I.  p.  352; 
E,  nos.  108  et  seq..  Vol.  I,  p.  442;  F,  nos.  1399,  1407,  1416,  1426  et  seq., 
1431,  1432,  1487,  1498,  Vol.  II,  p.  .509  et  seq.;  I,  nos.  130,  131,  133,  140, 
141,  Vol.  Ill,  p.  283 ;  L,  nos.  318  et  seq..  Vol.  IV,  p.  273.  See  also  "Li\Te 
des  droiz  et  des  commandements",  in  the  alphabetical  table,  5th  fine. 

**  Beaumanoir,  chap.  30,  nos.  20,  35,  36,  45,  Vol.  I,  pp.  417,  418,  422. 

194 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  Z9g 

the  merchant  who  sold  imitation  cloth,  the  party  who  wronjffully 
resisted  the  enforcement  of  a  royal  mandate,  the  landholder  who 
executed  a  fraudulent  deed  to  evade  the  relatives'  right  of  re-pur- 
chase;  and  in  other  instances.^''  Sometimes  the  regional  Custom 
itself  fixed  the  amount,  even  in  excess  of  sixty  sous,  keeping  ordi- 
narily to  the  tradition  of  the  earlier  law ;  thus  the  regional  Cus- 
tom of  Anjou  speaks  in  two  cases  of  a  fine  of  a  hundred  sous, 
called  "  relief  d'homme  ",^^  which  was  certainly  borrowed  from 
the  Capitularies  legislation  or  even  from  the  earlier  folk-laws 
("  Leges  ").^^  —  In  other  cases,  the  regional  Custom  fixed  amounts 
between  the  fine  of  sixty  sous  and  the  "  amende  de  loi."  Ac- 
cording to  Beaumanoir,  for  insult  the  fine  varies  according  to  the 
station  of  the  persons  and  the  gravity  of  the  case."*^  The  "  Etab- 
lissements de  Saint  Louis  "  speak  of  a  fine  of  fifteen  sous  for  assault. 
The  same  rule  obtains  in  Vermandois,  provided  the  victim  is  in  no 
danger  of  death  or  maiming;'^  Other  texts  mention  fines  of  ten 
and  twenty  sous  for  blows,  violence,  and  mere  insults.  This  was 
the  most  common  punishment  for  lesser  crimes ;  the  rate  alone 
varied  according  to  the  different  regional  Customs.'''^  —  Whenever 
a  fine  did  not  seem  sufficient,  the  judge  could  add  imprisonment.'' 
As  already  noted,  the  multiplicity  of  fines  for  errors  in  legal  prci- 

"  See  "Anciennes  eoutumes  d'Anjou  et  du  Maine",  E,  nos.  78,  100, 
115,  257,  Vol.  I,  pp.  431,  442,  445,  543;  F,  nos.  6(31,  684,  1396.  1307, 
Vol.  II,  pp.  242,  249,  508;  I,  nos.  97,  129,  137,  289,  Vol.  Ill,  pp.  259,  283, 
288,  413 ;    L,  no.  325,  Vol.  IV,  p.  280. 

■•«  A  fine  paid  by  the  vassal  in  order  to  redeem  liis  fief.  (Note  of  the 
Tr.) 

"  "Etablissements  de  Saint  Louis".  ])ook  1.  chapters  108  and  125. 
Cf.  Viollet,  "Etablissements  de  Saint  Louis",  Vol.  I.  p.  246.  _Th<"  first 
ease  of  this  fine  of  a  hundred  sous  and  one  denier  is  where  one's  animal 
has  killed  a  person,  the  owiut  Ijcing  ignorant  of  its  vice ;  for  if  he  had 
known  its  vice,  he  would  have  been  hanged:  "Etablissements  de  Saint 
Louis",  book  I,  p.  125,  Vol.  11,  p.  236.  The  second  case  is  that  of  a  per.son 
Avho,  accused  of  a  capital  crime,  has  furnished  bail  and  then  lied;  the 
surety  then  in  his  place  incurs  the  fine  of  a  hundred  .sous  and  one  denier. 
"Etablissements  de  Saint  Louis",  book  I,  chap.  108,  Vol.  II,  p.  100. 
According  to  the  "Li\Te  des  droiz  et  des  commanch'mens",  no.  344.  tlic 
fine  of  a  hundred  sous  and  one  denier  is  also  ai)plical)ic  to  an  abandonment 
of  a  charge  of  crime.  But  it  cannot  be  inflicted  uj)on  a  l)oy  less  tiian 
fourteen  years  old  for  inxoluntary  homicide.     See  ibid.,  no.  346. 

••*  Beaumanoir,  chap.  30,  nos.  21  c(  scq. 

^»  "Etablissements  de  Saint  Louis",  book  II,  chap.  24.  Cf.  lionlicr, 
"Philippe  de  Remi,  sire  de  Beaumanoir",  p.  389  ;  Vinllct,  "  Etablissements 
de  Saint  Louis",  Vol.  I,  p.  246;  Taiton,  "Le  registre  crimiuel  de  Saint- 
Martin-des-Champs",  p.  107. 

^0  In  the  following  te.xts  it  was  of  ten,  twenty,  or  thirty  sous  in  .\njou 
and  Maine:  "Anciennes  eoutumes  d'Anjou  et  du  Maine".  K,  nos.  KM). 
101,  106,  Vol.  T,  p.  4.38;  F.  nos.  14(K),  1411.  1415.  1427.  1430.  1131.  Vol. 
II,  pp.  509,  511,  514  ;    I,  nos.  120.  126,  Vol.  III.  pp.  277,  2S(). 

*'  Beaumanoir,  chap.  30,  no.  19,  \'ol.  1,  p.  416. 

195 


§  39^]  THE   MIDDLE   AGES  [Part  I,  TiTLE  II 

ceedings,  —  against  the  lawyers  if  they  had  faultily  pleaded,  and 
against  the  judges  if  they  had  given  an  erroneous  judgment, 
at  times  very  heavy,  often  led  to  the  ruin  of  individuals  and 
even  of  communities.^^  Whenever  the  king's  court  desired  to 
protect  the  loser  from  a  similar  misfortune,  it  inserted  in  the 
decision  a  "retentum",  which  exempted  from  a  portion  of  the 
fine;  e.g.,  in  1310,  a  judgment  sentenced  a  party  to  pay  a  fine 
of  two  thousand  francs  to  the  king,  but  with  a  "  retentum  "  that 
he  need  pay  only  one  thousand. ^^ 

The  king  had  always  the  power  of  making  a  total  or  partial 
remission  of  any  punishment  whatever,  or  of  substituting  one  less 
severe ;  he  had  even  the  right  of  removing  the  criminality  and  of 
thus  preventing  or  stopping  prosecution.  In  the  former  case,  he 
granted  "  Letters  of  Remission  "  ;  in  the  second,  "  Letters  of  Aboli- 
tion." The  former  represented  his  power  of  pardon,  the  latter  his 
power  of  amnesty.  There  are  numerous  examples  of  these.  Am- 
nesty was  granted  at  times  to  one  or  more  individuals,  at  other 
times  to  an  entire  city;  thus  the  city  of  Paris  obtained  "  letters 
of  abolition  "  from  the  Regent  during  the  captivity  of  King  John, 
dated  August  10,  1358.^^  During  the  first  part  of  the  period  here 
treated  the  king  apparently  reserved  as  an  essentially  personal 
privilege  the  right  of  granting  Letters  of  Abolition  of  of  Remission  ; 
it  did  not  belong  to  his  officers  or  magistrates,  unless  he  delegated 
it  to  them  in  due  form.  Thus  Letters  of  Charles  VI,  of  September, 
1398,  allowed  the  provost  of  Paris  to  rem-it  fines  of  ten  pounds  and 
over,  in  civil  cases,  to  persons  imprisoned  for  non-payment,''^ 
Likewise,  a  mandate  of  Charles  VI,  of  March  13,  1401,  conferred 
upon  the  Chancellor  of  France  the  right  to  grant,  in  council,  all 
the  Letters  of  Abolition  and  of  Remission. ^^  The  same  privilege 
was  possessed  by  the  great  vassals  of  the  crown,  and  was  also  con- 

^2  For  the  ruin  of  certain  communities  as  a  result  of  fines  inflicted  upon 
them  by  the  court  of  Parliament,  see  Flammermont,  "Histoire  des  in- 
stitutions munieipales  de  Senlis",  pp.  23,  36,  and  51. 

63  Isatnbert,  Vol.  Ill,  p.  11. 

6^  See,  for  example,  Letters  of  King  John  of  December  9,  1357,  Isambert, 
Vol.  IV,  p.  862 ;  Letters  of  the  Regent,  August  10,  1358,  Isambert,  Vol.  V, 
p.  35  ;  Letters  of  King  John,  May  22,  1369,  Isambert,  Vol.  V,  p.  94  ;  Letters 
of  Charles  V,  September  23,  1367,  Isambert,  Vol.  V,  p.  292.  See  also 
Letters  of  Discharge  of  Charles  V  of  July  1373  in  favor  of  the  lord  of 
Amboise,  who  had  caused  an  officer  of  the  king,  while  exercising  his 
duties,  to  be  carried  off  by  force,  kept  in  prison,  and  made  to  pay,  granted 
on  condition  that  the  guilty  man  pay  a  fine  to  the  king,  remain  a  week 
in  prison,  and  give  satisfaction  to  the  plaintiff.  Isambert,  Vol.  V,  p.  392. 
Amnesty  could  thus  be  granted  on  certain  conditions.  See  also  Marnier^ 
"Anciens  eoutumiers  de  Picardie",  p.  54. 

"  Isambert,  Vol.  VI,  p.  826.  ^  Ibid.,  Vol.  VIII,  p.  14. 

196 


Chapter  VI]  FRANCE   IN   THE   LATER   MIDDLE   AGES  [§  39g 

ceded  to  counts  and  barons ;  but  it  was  not  conceded  to  the  lords 
having  "  high  justice  "  who  were  not  also  lords  of  manors,  unless 
they  had  acquired  the  right,  either  by  grant  or  by  usage. •^'  More 
than  once  such  Letters  became  the  subject  of  mercenary  traffic 
by  the  possessors  of  this  privilege  or  those  through  whose  agency 
they  were  obtained. 

"  "Aneiennes  coutumes  d'Anjou  et  du  Maine",  E,  nos.  11  and  13, 
Vol.  I,  p.  391 ;  I,  nos.  15  and  17,  Vol.  Ill,  p.  181 ;  L,  nos.  308  and  310. 
Vol.  IV,  p.  270. 


197 


TITLE   III.     THE   RENASCENCE,  THE  REFORMA- 
TION,  AND   THE    1700  s 


CHAPTER     VII. 

CHAPTER   VIII. 

CHAPTER       IX. 
CHAPTER        X. 

CHAPTER      XI. 


GERMANY'S  RECEPTION  OF  THE 
ROMAN  LAW  IX  THE  EARLY 
1500  s. 

GERMANY  IN  THE  LATE  1500  s  AND 
THE   1600  s. 

GERMANY   IN   THE  1700  s. 

FRANCE  FROM  THE  1500  s  TO  THE 
1700  s. 

SCANDINAVIA,  SWITZERLAND,  AND 
THE  NETHERLANDS,  FROM  .ME- 
DIEVAL  TIMES    TO   THE   1700  s. 


199 


Chapter  VII 


GERIMANY'S    RECEPTION    OF     THE     ROMAN 

EARLY   1500  si 


LAW     L\     THE 


§  40.  Reasons  for  Reception  of  the 
Roman  Law.  Permanent 
Features  of  the  German 
Law.     The  Italian  Jurists. 

§  4L  Early  Law  Books  Introduc- 
ing the  Italian  Legal 
Learning  into  Germany. 
The  "  Bambergensis  Hals- 
geriehtsordnung."  Rela- 
tion of  the  Bambergensis 
to  the  Italian  Legal  Doc- 
trines. 

§  42.  The  Punishments  of  the 
Bambergensis.  Relation 
of  the  Bambergensis  to  the 


Local  Law.  Intrinsic 
Merit  of  the  Bambergen- 
sis. Recognition  of  the 
Bambergensis  Outside  of 
Bamberg. 

§  43.  The  "(\irolina."  Local  Op- 
position. The  "Saving 
Clause." 

§  44.  Comparison  of  the  Carolina 
and  the  Bambergensis. 
Careless  Manner  of  Pub- 
lication. Varied  Applica- 
tion of  the  Carolina.  (}en- 
eral  Effect  of  the  Carolina. 


1  For  the  matter  contained  in  Chapters  VII-IX,  the  following  wTiters 
may  be  consulted  :  Malblank,  "Geschichte  der  peinlichen  Gerichtsordnung 
Kaiser  Karl  V."  (1783)  ;  Henke,  "Grundriss  einer  (Jescliichte  des  deiitsclien 
peinlichen  Rechts"  (2  vols.  1809),  Vol.  II;  Zupjl,  "Das  alte  Bamberger 
Recht  als  Quelle  der  Carolina"  (1839);  Herrmann,  "Freiherr  Johann  v. 
Schwarzenberg.  Ein  Beitrag  zur  Geschichte  des  Criminalrechts"  (1841) ; 
Von  Wächter,  "Gemeines  Recht  Deutschlands,  inbe.sondere  gemeines 
deutsches  Strafrecht"  (1844);  Warnkönig  und  L.  Stein,  "Französische 
Staats-  und  Rechtsgeschichte",  III,  pp.  (ill  et  seq.;  Scliüffner,  "Ge- 
schichte der  Rechtsverfassung  Frankreichs",  III,  pp.  427  et  .seq.,  pp.  (iül 
et  seq.,  IV,  pp.  322  et  seq.;  Kö.Htlin,  "Geschichte  des  deutschen  Strafrechts 
im  Uniriss,  lierausgegelien  von  Gessler"  (1859),  pp.  200  el  seq.;  (leib, 
"Lehrliuch  des  deutschen  Strafrechts",  I,  pp.  240  et  seq.;  \'nn  Stintzing, 
"Geschichte  der  populären  Literatur  des  nimisch-kanonischen  Rechts  in 
Deutschland"  (1867);  Berncr,  "Die  Strafgesetzgi-bung  in  Deutscldand 
vom  Jahre  1751  bis  zur  Gegenwart"  (1807);  Alhird,  "Ilistoire  du  droit 
criminel  au  XVIeme  siecle"  (Paris,  Leipzig,  1808);  \'on  Holtzenitarß, 
"Handbuch  des  deutsclien  Strafrechts",  I,  pp.  (17-143;  (History  of  (he 
criminal  law  of  countries  otlier  than  Gernumy,  \'<>n  Holtzemlnrjf,  |>p.  144  - 
238);  Güterbock,  "Die  Entstehungsgeschichte  der  Carolina  auf  Grund 
archivalischer  Forschungen"  (187())  ;  Von  Wächter,  "Beilagen  zu  Vor- 
lesungen über  das  deutsche  Strafrecht"  (1877),  pp.  1(K)  et  seq.;  lininnen- 
meisl'er,  "Die  Quellen  der  Bambergensis,  ein  Beitrag  zur  Geschichte  des 
deutschen  Strafrechts"  (1879)  ;  Von  Stintzing,  "Geschichte  der  deutschen 
Rechtswissenschaft"  (1,  1880). 

Collections  of  the  literature  dealing  with  the  matter  contained  in  these 
chapters  may  be  found  especially  in  the  follo\\'ing  \\Titcrs :   G.  W.  Böhmer, 

201 


§  40]      THE  RENASCENCE  AND  THE  REFORMATION       [Paut  I,  TiTLE  III 

§  40.  Reasons  for  Reception  of  the  Roman  Law.  —  Reception  of 
the  Roman  Law.  —  The  reception  of  the  liomaii  law,  —  or  to  speak 
more  correctly,  the  combination  of  Roman  and  German  legal  prin- 
ciples, which,  towards  the  end  of  the  Middle  Ages,  came  about  in 
the  other  domains  of  the  law  —  could  not  long  be  excluded  from 
the  province  of  criminal  law.  Here  the  change  came  about  in  a 
much  more  correct  manner.  It  lacked  those  inconsistencies  and 
incongruities  which  we  so  often  find  in  the  other  branches  of 
the  law,  —  the  ill  effects  of  which  are  in  part  so  numerous  in 
our  legal  institutions,  remaining  even  until  the  most  modern  times. 
In  great  part,  criminal  law  is  nothing  other  than  an  application 
of  the  generally  prevalent  philosophic  truths  and  fundamental 
rules  of  morality.  Assuming  the  existence  of  the  methods  of 
procedure  requisite  for  the  ascertainment  of  the  facts  involved  in 
the  concrete  case,  that  treasure  of  wisdom  acquired  by  one 
people  may  to  a  certain  extent  be  transferred  to  the  law  of 
another,  without  rendering  it  incongruous.  This  is  so,  just 
as  to-day  the  so-called  general  part  of  the  criminal  codes  of 
the  most  highly  civilized  nations  is  (with  the  exception  of  the  sys- 
tem of  punishment)  often  transferred  to  nations  that  are  less 
civilized.  And  where  their  civilization  is  similar  in  degree,  dif- 
ferent States  feel  the  need  of  providing  punishment  for  the  same 
acts.  To  a  less  extent  than  the  private  law  does  the  criminal 
law  contain  rules  that  are  arbitrary  or  based  upon  expediency  or 
merely  relics  of  the  past.  Its  purpose  is  to  protect  the  general 
system  of  law,  —  that  system  from  which  it  may  at  first  glance 
appear  very  different.  Yet  the  wall  which  is  designed  to  protect 
this  system  may  contain  essentially  the  same  construction,  and 
under  some  circumstances  must  contain  the  same  construction. 
But  there  was  more  in  the  reception  of  the  Roman  law  by  the 
criminal  law  than  the  mere  absence  of  injury  to  either.     The 

"Handbuch  der  Literatur  des  Criminalrechts "  (1816);  Von  Wächfer^ 
"Lehi'bueh  der  römisch-deutschen  Strafrechts"  (2  vols.  1825,  1826); 
Kappler,  "Handbuch  der  Literatur  des  Criminalrechts"  (1838);  Geib, 
"Lehrbuch",  I ;  Nypels,  "Le  droit  penal  frangais  progressif  et  compare" 
(Bruxelles,  1864);  Binding,  "Grundriss  zu  Vorlesungen  über  gemeines 
deutsches  Strafrechts"  (2d  ed.  1877).  [Later  wTiters  are:  Pfeilschifter. 
"Das  Bamberger  Landrecht,  systematisch  dargestellt"  (Erlangen,  1898) ; 
Kohler  and  Scheel,  "Die  Bambergische  Halsgerichtsordnung"  (Halle, 
1902);  Zöpfl,  "Die  peinliche  Gerichtsordnung  Kaiser  Karl  V."  (Berlin, 
1893);  Oppermann,  "Die  Schuldlehre  der  Carolina"  (Leipzig,  1904); 
Christiani,  "Die  Treuhand  der  frankischen  Zeit"  (Breslau,  1912);  Kaii- 
toromcz,  "  Gobler's  Karolinenkommentar  und  seine  Nachfolger"  (1904); 
Kohler  and  Scheel,  "  Die  Karohna  und  ihre  Vorgängerinnen  "  (3  vols.  1900- 
1904).  — Von  Thot.] 

202 


Chapter  VII]       GERMANY'S   RECEPTION   OF   THE   ROMAN    LAW      [§  40 

contact  of  the  two  systems  led  to  a  widening  of  principles,  such 
as  the  Roman  law  presumably  would  never  have  attained  and 
such  as  would  have  taken  the  Germanic  law  a  longer  j)eriod  to 
acquire,  if  left  to  its  original  course  of  development.^ 

The  Germanic  law  primarily  looked  only  to  the  external  act  vio- 
lating a  right.  The  element  of  inward  guilt,  to  be  sure,  was  not  en- 
tirely neglected  ;  but  the  crude  and  clumsy  law  of  proof  was  obliged 
to  stop  at  the  guilty  motive  as  manifested  in  external  acts  (which 
to  us  now  seem  more  and  more  inadeciuate  for  the  ascertainment 
of  the  real  inner  guilt).  We  may  here  call  attention  to  the  futile 
laborings  of  the  law-books  of  the  later  ]\Iiddle  Ages,  especially  e.g., 
in  respect  to  negligence  and  self-defense.  As  we  have  seen,  theol- 
ogy, morality,  the  Canon  and  the  Mosaic  Law  often  proved  them- 
selves false  guides.  But  all  that  was  lacking  in  these  respects 
was  to  be  found  in  the  short  and  clear  maxims  of  the  Roman  Law, 
and  in  its  certainty  in  apjilication  to  individual  cases.  The  later 
Roman  Law  could,  in  many  respects,  be  regarded  as  a  system  more 
finished  in  its  development  than  the  native  law.  Resort  was  had 
to  the  former  where  the  latter  no  longer  seemed  suitably  adajjted 
to  the  particular  matter  involved.  This  in  the  later  ^Middle  Ages 
was  often  the  case. 

jVIoreover,  in  the  period  whereof  we  speak,  the  old  sturdy 
Germanic  freedom  could  no  longer  prevail.  The  existence  of 
the  cities  rendered  necessary  the  maintenance  of  police  and  a 
system  of  militia,  —  a  new  and  different  condition  of  affairs. 
An  altered  status  obtained  for  the  i)rinces  and  magistrates.  A 
greater  protection  was  required  by  trade  and  commerce.  In 
spite  of  many  far-reaching  differences,  life,  as  a  whole,  especially 
in  the  cities,  was  more  similar  to  the  life  of  the  early  Roman 
Empire  than  to  that  once  lived  by  the  old  Germans  among  their 
secluded  villages  and  farms.  For  that  protection  now  necessary 
in  matters  of  criminal  law,  the  old  Roman  conception  of  offenses 
("  delicta  ")  was  better  suited  than  the  maxims  of  the  early  Ger- 
man law.  Instead  of  choosing  the  prolix  and  laborious  metliod 
of  a  special  statute,  it  was  simpler  to  treat  the  Roman  Law  as  a 
more  complete  exposition  of  the  local  law.  This  was  furthered 
by  the  fact  that  it  was  considered  nothing  unusual  to  l)orrow 
and  transplant  law  and  a  system  of  justice  from  one  city  to 
another. 

1  Proof  of  this  is  furnished  by  the  EnKlish  criminal  law,  which  was 
more,  if  not  entirely,  removed  from  the  influence  of  the  Roman  Law. 

203 


§  40]      THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  TiTLE  III 

Permanent  Features  of  the  Germanic  Law.  —  However,  the 
Roman  Law  had  its  defects.  It  was  burdened  with  many  irra- 
tional and  repellent  deformities.  Many  of  its  features  bore  the 
character  of  legislation  enacted  to  serve  temporary  expediency, 
and  suffered  from  the  fundamental  scientific  defect  that,  through 
paying  too  little  attention  to  the  effect  of  criminal  act,  its  ascer- 
tainment of  the  underlying  intention  was  superficial.  Moreover, 
it  did  not  make  sufficient  distinctions  in  the  definition  of  ofi'enses ; 
in  general,  it  was  subject  to  no  restrictions  in  its  treatment  of 
the  individual.  It  was  in  these  respects  that  the  Germanic  con- 
ception of  law  had  to  be  retained.  There  was  no  need  to  transfer 
the  deformities,  the  inconsistent  and  irrational  features,  which 
were  bound  up  with  transitory  historical  conditions.  There  was 
no  need  to  give  up  the  Germanic  definitions  of  offenses,  which  as 
a  whole  rested  upon  firmer  foundations.  What  was  requisite 
was  to  use  as  a  foundation  the  Germanic  conception  of  freedom,  and 
to  base  the  subjection  of  the  individual  to  the  criminal  law  upon 
his  own  free  wdll.  This  was  feasible  at  least  to  the  extent  that 
every  "  ex  post  facto  "  application  of  a  new  statute  to  the  detri- 
ment of  an  individual  was  to  be  prohibited,  and  punishment  was 
to  be  permissible  only  under  a  statute  of  which  the  individual 
has,  or  must  be  presumed  to  have,  knowledge ;  and  also  to  the 
extent  that,  in  the  wording  of  statutes  upon  which  the  individual 
is  to  rely  in  his  actions,  there  should  be  found  a  guarantee  to  the 
individual  of  his  liberties,  and  not,  as  in  the  Roman  law,  a  means 
more  surely  to  get  at  the  culprit. 

The  Italian  Jurists.^  —  This  task  had  already  been  undertaken 
on  sound  lines,  and  for  the  most  part  completed  (although  not 
entirely  without  mistakes)  by  the  Italian  jurists.  In  Italy,  earlier 
than  in  France  or  Germany,  the  Germanic  law^  had  come  into  con- 
tact with  the  Roman.  In  that  country  there  was  more  of  refine- 
ment and  culture.  Apart  from  the  frequently  awkward  method 
of  expression  and  the  subtle  and  often  repellent  technicalities, 
one  can  here  observe  in  the  criminal  law,  as  compared  with  that 
of  the  Romans,  a  distinct  increase  of  breadth.^  A  beginning  was 
made  towards  tracing  back  to  their  ultimate  and  possibly  uni- 
versal principles  the  case-decisions  of  the  Roman  authorities. 

2  [A  full  account  of  the  history  of  criminal  law  in  Italy  is  given 
in  Vol.  VIII  of  the  present  Series,  Calisse's  "History  of  Italian  Law." 
—  Ed.] 

^  Cf.  especially  the  discussion  by  Seeger  in  "Der  Geriehtsaal"  (1872), 
pp.  204  et  seq. 

204 


Chapter  VII]       GERMANY'S    RECEPTION    OF   THE    ROMAN    LAW      [§  40 

One  need  recall  only  the  manner  in  which  the  decisions  under  the 
title  of  the  Digest,  "  Ad  legem  Aquiliam  ",  were  expounded,  in 
conjunction  with  the  title  "  De  lege  Cornelia  de  sicariis  "  and  the 
statutory  provisions  for  manslaughter  and  wounding ;  the  manner 
in  which  a  general  theory  was  advanced  for  the  doctrines  of  the 
applicability  of  new  statutes,^  of  self-defense,  of  attempt,  of  the 
punishment  of  various  participants  in  the  same  crime,  and  of 
joint-wrongdoers.  With  a  sure  touch,  the  Italian  jurists  dis- 
cerned those  points  wherein  the  Roman  law,  although  its  literal 
acceptance  would  have  been  possible,  yet  ran  contrary  to  the 
general  sense  of  justice.  ]\Iany  kinds  of  attempts  at  crime,  and 
even  acts  which  according  to  our  modern  conception  are  merely 
acts  done  in  preparation  for  crime,  were  by  the  Roman  law  pun- 
ished with  the  same  penalties  as  the  consummated  crime.  This  is 
explained  by  the  fact  that  the  "  Lex  Cornelia  "  was  designed  to 
serve  purposes  of  temporary  expediency.  These  doctrines  were 
rejected  by  the  Italians,  on  the  ground  of  "  consuetude  generalis," 
From  this  same  "  consuetudo  generalis  "  were  borrowed  the 
doctrines  about  theft  and  brigandage. 

Upon  closer  inquiry  one  finds  the  Italian  statute  law  of  the 
medieval  cities  to  have  been  the  subject  of  so  much  study  that 
one  cannot  with  truth  speak  of  a  lack  of  respect  for  the  Germanic 
law  in  the  Italian  lawbooks.  And  since,  notoriously,  these  learned 
jurists  exercised  a  controlling  influence  over  the  judicial  practice, 
any  other  result  is  scarcely  conceivable.  Neither  the  self-con- 
scious citizenry  of  the  Italian  cities,  nor  the  autocratic  power  of 
the  Italian  princes,  would  have  tolerated  an  open  disregard  for 
the  statutes.  To  be  sure,  in  the  ^Middle  Ages,  the  theory  of  the 
omnipotence  of  the  State  and  statute  law  fell  far  short  of  its  mod- 
ern acceptance.  That  a  doctrine  which,  necessarily,  was  derived 
from  the  "  naturalis  ratio  "  could  not  be  rendered  nugatory  by  a 
command  of  the  legislative  power  was  a  general  rule,  and  one  not 
limited  in  its  application  to  merely  the  province  of  criminal  law. 
Consequently  we  need  not  be  surprised  to  find  essays  ^  on  the 
validity  of  statutes  whose  harshness,  especially,  in  their  eliVct  upon 

*  Here  the  theories  of  the  jurists  are  founded  upon  a  reniarkahlo  dis- 
cussion by  Richardus  IVIalumbra  at  the  be^Muninj;  of  the  l.')(J()s.  Ho 
advances  the  now  generally  accepted  theory  of  the  retroactive  elTect  of 
later  and  milder  penal  statutes.  Cf.  Alhrricit.s  ilr  Rosntc,  •Toninient. 
super  Codicem  ad  le^.  7  C.  de  legs-",  and  in  regard  to  this.  Sccgcr,  "Ab- 
handlungen aus  di-m  Strafrecht"  (18(12).  II.  1,  pp.  ')2  ct  scq. 

5  Cf.  e.g.  Hippolytus  de  Marsiliis  (died  1529),  "Ad  leg.  Corn,  de  sicarus 
L.  Infamia",  n.  16,  n.  13. 

205 


§  40]      THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  TiTLE  III 

innocent  persons,  was  notable ;  nor  to  encounter  decisions  holding 
that  some  practice  did  not  merit  observance  since  it  was  "  mala 
consuetudo  ",^  or  some  statute  was  void  as  "  contra  bonos  mores."  ^ 
Some  writers,^  e.g.  Azo  and  the  Glossators,  merely  commented 
upon  the  Roman  law  and  explained  it,  but  did  not  expound  it 
in  the  light  of  the  "  generalis  consuetudo  ",  of  the  statutes,  and 
of  actual  practice.  Other  writers,^  like  Rofi'redus,^°  Guilielmus 
Durantis,  and  Jacobus  de  Belvisio  ^^  dealt  mainly  with  criminal 
procedure  only.  But  writers  on  substantive  law  who  here  deserve 
especial  attention  are:  Albertus  de  Gandino  (Gandinus),^-  at 
the  end  of  the  1200  s,  Bartolus  de  Saxoferrato  ^^  in  his  commentary 
on  the  law  of  Justinian,  Baldus  de  Ubaldis  (1328-1400),  Bartolo- 
meus  de  Saliceto  (died  1412),  and  lastly  Angelus  Aretinus  de 
Gambilionibus  (died  1450).^^  Among  these  the  first  place  must 
be  accorded  to  Gandinus,  Bartolus,  and  Aretinus.  However, 
it  was  not  until  the  1500  s,  in  the  work  of  Julius  Clarus,^'^  that 
the  science  of  criminal  law  among  the  Italians  reached  its  point  of 
highest  development.  By  the  time  the  reception  of  the  Roman 
law  in  Germany  was  being  counteracted  by  the  "  Bambergensis  " 
and  the  "  Carolina  ",  it  was  exemplified  in  Italy  in  the  work  of 
Angelus  Aretinus ;  although  most  of  the  important  and  original 
contributions  to  the  substantive  criminal  law  must  perhaps  be 
ascribed  to  Bartolus.  To  him  we  shall  have  occasion  to  revert 
in  the  discussion  of  individual  theories.  It  is  easy  to  understand 
why,  in  Germany,  relief  from  the  unstable  and  defective  system 
of  criminal  justice  was  first  sought  from  those  writers  who  "  ex 
professo  "  had  chosen  criminal  law  for  their  subject,  and  also 
were  more  readily  to  be  understood  than  the  commentaries  on 
the  Digest  and  the  Code ;  this  especially  applies  to  Gandinus  and 
Angelus  Aretinus.^^ 

*  Bonifacius  de  Vitalinus,  "Rubr.  quid  sit  accusatio",  n.  113. 

''  Hippolytus  de  Marsiliis,  "Practica  causarum  criminalium",  §  "Re 
stat.",  n.  92. 

*  The  earliest  treatise  specially  devoted  to  criminal  law  was  that  of 
Rolandinus  de  Romanciis  (died  1284).  Cf.  Savigny,  "Geschichte",  V,  p. 
557. 

^Concerning  these  writers,  cf.  especially  Savigny,  V  and  VI;  Allard, 
"Histoire",  pp.  397  et  seq. ;  Biener,  "Beiträge  zur  Geschichte  des  Inquisi- 
tionsprocesses",  pp.  93  et  seq.;  Rosshirt,  "Geschichte  und  System  des 
deutschen  Strafrechts"  (3  vols.,  1838-1839),  I,  pp.  208  et  seq. 

10  Died  1250.       "  Born  1270.     Died  1335.       i^  "j.ibellus  de  maleflciis." 
13  Born  1314.     Died  1357.  i»  "Tractatus  de  maleflciis." 

'^  Born  1525.     Died  1575.     "Practica  criminaüs  s.  Sententiarum  re- 
ceptarum  L.  V."  (1560,  and  many  later  editions). 
"  References  by  Brunnenmeister,  p.  148. 

206 


Chapter  VII]       GERMANY'S    RECEPTION    OF   THE    ROMAN    LAW       [§41 

§  41.  Early  Law  Books  Introducing  the  Italian  Legal  Doctrines 
into  Germany.  —  The  efi'ect  of  tlie  new  Italian  learning;  was  .seen 
in  Germany  not  only  in  the  local  legislation,  but  also  in  the  popu- 
lar literature,  which  sought  to  make  the  Roman  law  comprehen- 
sible to  both  the  official  judges  and  lay-justices  ("  Schöffen  ") 
as  well  as  to  the  educated  public.  The  "  Klagspiegel  ",  ^  com- 
l)ose(l  about  the  middle  of  the  1400  s,  and  later  edited  by  Sebastian 
Brant,  drew  especially  on  the  works  of  Azo,  Koffredus,  and  Gandi- 
nus.  From  the  "  Klagspiegel  "  in  its  turn,  and  also  directly 
from  Gandinus,  was  derived  the  "  Wormser  Reformation  "  of 
149S.'-  This  influence  of  the  Italians  is  also  met  with,  although 
in  an  indistinct  and  indefinite  manner,  in  the  "  Maximilianischen 
Halsgerichtsordnungen  "  for  Tyrol  (1499)  and  for  the  city  of 
Radolphzell  (1506).^  Those  elements  of  crime  which  in  the  Middle 
Ages  were  determinative  of  guilt  were  here  already  abandoned. 
The  element  of  intention,  ascertained  by  tlie  judge  in  the  indi- 
vidual case,  was  judged  according  to  the  Roman-Canon  law  as 
the  standard.  Criminal  punishment  came  to  be  treated  as  the 
State's  aft'air,  and  not  as  a  penalty  inflicted  at  the  discretion  of 
the  party  injured. 

All  these  works  were  primarily  sj'stems  of  procedure.  The  sub- 
stantive law  is  dealt  with  only  incidentally  and  more  or  less  in- 
adequately. It  is  best  and  most  completely  treated  in  the 
"  Wormser  Reformation."  But  this,  which  Stobbe  ^  accurately 
<lescribes  as  a  text-book  raised  to  the  level  of  a  statute,  is  not  a 
complete  code.  In  the  "  Halsgerichtsordnung  "  for  Radolphzell 
it  is  expressly  stated  :'"  "  Xot  all  crimes  that  may  possibly  happen 
are  herein  described  and  mentioned.  Xe\ertheless  the  judge, 
with  the  advice  or  order  of  the  council,  .  .  .  shall  also  in  the  cases 
not  herein  mentioned  condemn  and  punish  e\ery  crime  in  accord- 
ance with  the  circumstances  and  his  best  understanding."  ^ 

'  The  "Klagspiegel"  is  nothing  more  than  a  collection  (by  no  means 
uniformly  successful)  from  tlie  writings  of  a  limited  num])er  of  Italian 
jurists.     This  is  the  correct  verdict  of  Brunnenmeisler,  p.  151,  note. 

^  Brurmcnineister,  pp.  120  et  seq. 

'^  Cf.  Wahlhcrg,  "Die  Maxiinilianischen  Halsgerichtsordnungen,  ein 
Beitrag  zur  Geschichte  des  Strafrcchts  in  Oesterreifh  "  (in  IlainurVs 
"Vierteljahrschrift",  1859,  IV,  i)p.  UA  et  seq.).  Another  "Halsgerichts- 
ordnung" (i.e.  criminal  code)  was  pronuügated  in  l.")14  for  Laihacli.  and 
the  "Niederösterreichische  Landesgerichtst)rdnung"  of  1514  also  contained 
criminal  provisions. 

■"  Stobbe,  II,  pp.  335  et  seq. 

^  Walchner,  "Geschichte  der  Stadt  RadolphzfU"  (1S25),  p.  2S5. 

^  (§  XXXI).  "Und  nachdem  hierynn  iiit  all  \l)cltaten  so  heschelu-n 
möchten,   beschrieben   vnd  ausgedruckt   sind,   so   sollen   doch   uit  desto 

207 


§  41]      THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Titli-:  III 

The  "  Bambergensis  Halsgerichtsordnung."  AuotluT  work, 
of  the  early  1500  s,  deuliuij:  with  local  law,  and  forming  the  founda- 
tion of  the  later  comprehensive  imperial  statute  (the  "  Caro- 
lina "),  and  l)ec()ming  thereby  the  basis  of  German  criminal  law 
for  nearly  three  and  a  half  centuries,  viz.  the  "  Bambergensis  ", 
was  primarily  a  statute  dealing  with  criminal  procedure.  As  a 
matter  of  fact,  the  most  pressing  need  of  the  time  was  for  cer- 
tainty in  the  course  of  procedure  and  the  rules  of  proof.  "^  The 
"  Bambergensis  ",  ^  composed  by  Freiherr  Johann  von  Schwarz- 
enberg,^  was,  in  other  respects,  upon  the  same  plane  with  the 
works  which  had  preceded  it.  Like  them,  it  can  be  regarded 
either  as  a  code,  or  as  a  popular  textbook  well  spoken  of  and  es- 
teemed by  the  authorities,  or,  more  properly,  as  both.^°     To  enact 

minder  der  Vogt  mit  Rat  oder  Vrtheil  der  Rät  .  .  .  auch  in  denselben  so  nit 
hyrinnen  ausgedruckt  sind,  zu  vrtheilen  vnd  zu  straffen  haben  nach  Irem 
Pesten  versteen  vnd  gestalt  einer  yeden  vbeltat." 

^  The  substantive  law  was  dealt  with  in  the  middle  of  the  "Bambergen- 
sis" in  connection  with  the  passing  of  judgment.  Arts.  12.5-20G.  But 
even  here  many  provisions  of  procedure  are  intermingled. 

^  Enacted  by  Bishop  Georg. 

*  Cf.  particularly  Hermann's  interesting  little  work :  ".Johann  Freiherr 
y.  Schwarzenberg."  Schwarzenberg,  born  December  25th,  1463,  belong- 
ing to  a  Frankish  noble  family,  first  devoted  himself  to  military  affairs. 
As  a  "vir  clarus  armorum,  belli  arte  primus",  he  acquired  fame  and  honor, 
accompanying  the  Kaiser  Maximilian  on  many  of  his  expeditions.  Then 
—  at  least  as  early  as  1501  —  he  was  "Hofmeister"  {i.e.  governor,  lord- 
mayor)  of  Bamberg  and,  as  such,  president  of  the  high  court  of  Bamberg, 
which  towards  the  end  of  1400  held  the  important  position  of  appellate 
court  for  the  entire  principality.  Cf.  Brunnenmeister,  p.  35.  Later,  he 
was  well  known  as  an  experienced,  prudent,  able,  and  scrupulous  man  of 
business.  At  the  same  time,  although  not  attaining  a  particularh'  high 
degree  of  culture  or  becoming  master  of  the  Latin  language,  he  took  a 
part  in  the  humanistic  trend  of  his  time,  which  had  a  leaning  towards 
classical  antiquity.  To  make  himself  familiar  with  the  Italian  legal 
learning,  he  was  obliged  to  avail  himself  of  the  services  of  others,  whose 
names  are  to  us  unknown.  This  makes  for  the  most  part  his  intelligent 
estimation  of  the  learned  Italian  jurists  all  the  more  extraordinary.  The 
customary  earnestness  of  this  remarkable  man  is  exhibited  in  his  various 
didactic  poems,  such  as  "Biiehle  wider  das  Zutrinken",  "Wider  das  ^Nlord- 
laster  des  Raubens",  "Kuinmertrost."  Composed  in  an  extraordinarily 
strong  and  heart-gripping  style,  they  belong  to  the  most  notable  literary 
productions  of  their  time.  In  the  later  years  of  his  life,  Schwarzenberg, 
who  was  sincerely  in  sympathy  wdth  the  Reformation,  devoted  himself  to 
the  Frankisli  principality  of  the  house  of  Brandenburg.  In  the  second 
half  of  the  year  1522,  we  find  him  a  member  of  the  Imperial  x\dministra- 
tive  Council  ("Regiment"),  of  which  he  was  at  the  time  in  charge,  in 
place  of  the  absent  Kaiser  Carl  V.  In  1512,  he  had  staked  his  life  for  the 
preservation  of  the  "Landfriede"  in  Bamberg.  Schwarzenberg  died 
October  21,  1528.     Cf.  Stintzing,  "Geschichte",  I,  pp.  612  el  seq. 

•"  Cf.  the  preface:  "...  haben  des  mere  bedencken  müssen,  wie  wir 
derselben  lent  vnbegreifflikeit  zu  liilff  komen."  As  is  well  known,  the 
edition  of  1507  was  fitted  out  with  wood  engravings  and  rhymed  verses, 
so  as  to  give  it  greater  impressiveness.  "Wir  haben  auch  in  dieser  vnser 
Ordnung  vmb  eigentlicher  merekung  vnd  beheltnuss  willen  des  gemeinen 

208 


Chaptkr  VII]     Germany's  reception  of  the  romax  law     [§  41 

a  code  in  the  modern  sense  (Lr.  in  which  deliberate  changes  are 
introduced  into  the  law,  or  in  which  the  law  is  completely  set  forth), 
was  not  to  be  thought  of,  and  certainly  not  in  a  principality  of 
small  area  and  importance.  Legislation  of  this  sovereign  char- 
acter was  not  in  accordance  with  the  spirit  of  the  times.  Of  course, 
prior  to  this  time  much  new  law  had  already  been  produced  by 
legislation ;  but  the  appropriate  field  for  legislation  was  deemed 
to  be  not  so  much  the  creation  of  new  law  as  the  presentation  of 
existing  law.  It  was,  at  best,  only  in  those  cities  which  were  freed 
from  their  feudal  superior,  and  in  the  imperial  legislation  itself, 
that  there  existed  thoughts  of  a  power  truly  sovereign  in  the  dis- 
pensing of  legislation.  In  the  feudal  districts,  the  feudal  lord 
could,  in  matters  of  private  law,  to  a  certain  extent  exercise  his 
control  over  his  dependants,  or  he  might  enter  into  compacts 
with  them  ;  but  legislation  in  its  proper  sense  did  not  exist. 

Relation  of  the  Bambergensis  to  the  Italian  Legal  Learning.  — 
Among  the  educated  classes  it  was  tlie  Roman  law  —  i.e.  the 
Roman  law  as  it  was  presented  by  the  famous  jurists,  educated 
in  Italy,  exercising  control  in  the  universities  and  ultimately  in 
the  highest  tribunals  and  the  courts  of  the  princes  —  which  was 
observed  as  the  most  complete  law.  It  was  regarded  as  the  gen- 
eral law,  at  least  to  the  extent  that,  as  opposed  to  it,  every  other 
law  was  obliged  to  justify  itself  on  the  grounds  of  local  necessity. 
This  may  also  be  regarded  as  the  ^•iew  of  the  author  of  the  Bam- 
bergensis. It  is  further  illustrated  by  the  fact  that  Schwarzen- 
berg  had  a  profound  respect  for  the  Roman  literature,  and  in  the 
humanistic  spirit  of  the  times  also  undertook  to  popularize  the 
philosophical  writings  of  Cicero. 

The  compiling  of  the  entire  Italian  judicial  practice  in  the 
form  of  a  code  was  not  even  to  be  contemplated.  It  was  in  many 
respects  too  controversial  and  too  full  of  detailed  and  subtle 
distinctions.  The  chief  end  to  be  attained  was  to  render  assist- 
ance to  the  crude  comprehension  of  the  lower  courts,  not  pre- 
sided over  by  judges  trained  in  the  law.  Hence  the  attitude 
of  the  German  legislator,  as  we  shall  now  set  it  forth,  ai)pears 
from  the  practical  viewj)oint  to  have  been  most  sound : 

Principles,  which  in  the  Italian  legal  practice  were  of  undoubted 
validity  and  seemed  capable  of  dear  and  simple  expression,  must 
be  enacted  in  the  form  of  legislative  commands.     Abuses  must 

mans,  figur  vnd  reumen  .  .  .  orden  vnd  drucken  lassen  "  (Preface,  towards 
the  end). 

209 


§  41]      THE  RENASCENCE  AND  THE  REFORMATION       [Part  I,  TiTLE  III 

be  abolished  }\v  means  of  categorical  prohibitions.  (Here  Schwarz- 
enberg  was,  in  his  opinion,  acting  not  so  inucli  the  part  of  a  legis- 
lator as  that  of  a  guardian  and  protector  of  the  existing  law.) 
On  the  other  hand,  where  the  Italian  legal  practice  was  contro- 
versial or  could  not  be  clearly  expressed,  the  most  practical  plan 
was,  —  not,  as  had  been  done  in  the  "  Iladolphzeller  Halsgerichts- 
ordnung ",  to  refer  the  matter  to  the  "  best  understanding  "  of 
the  "  Schöffen  "  —  but  to  refer  to  that  legal  practice  to  which  the 
legislator  himself  had  resorted.  This  reference  to  the  Roman- 
Italian  rule  would  apply  only  where  the  verdict  of  the  "  Schöffen  " 
of  the  lower  courts  in  such  cases  had  been  rendered  and  in  its 
place  would  be  substituted  a  judgment  obtained  by  reference  to 
a  "  Collegium  "  of  learned  jurists.^^ 

Even  in  our  own  day  the  legislator  does  not  claim  that  he  him- 
self has  settled  all  difficult  questions.  But  there  is  a  great  dif- 
ference between  the  position  of  tlie  Bambergensis  and  that  of  the 
modern  legislator.  Our  own  legislator  proceeds  upon  the  prin- 
ciple that  the  law^  is  primarily  to  be  interpreted  and  supplemented 
from  itself.  The  rules  expressly  framed  by  him  form  a  net,  into 
which  all  matters  yet  to  be  decided  must  be  drawn,  and  from  the 
specific  rules  the  general  and  fundamental  principles  are  to  be 
derived.  Schwarzenberg  did  not  look  at  the  matter  in  this  light. 
According  to  his  viewpoint  legal  doctrine  was  superior  to  his 
"  Halsgerichtsordnung."  That  which  he  himself  had  not  passed 
upon  was  to  be  decided,  not  from  analogy  to  the  principles  by 
him  accepted,  but  rather  by  a  direct  reference  to  the  science  of 
the  law,  as  laid  down  in  the  writings  of  the  Italian  jurists.  Even 
where  he  himself  did  not  regard  the  accepted  opinion  of  the  jurists 
as  logically  correct,  he  did  not  feel  himself  justified  in  departing 
therefrom.  This  is  clearly  evident  from  his  well-known  state- 
ment concerning  bigamy.  Schwarzenberg  ^^  declared  this  to  be 
a  "  fast  schwere  strefliche  missthat  ",  but  because  the  "  Keyser- 
lichen  Recht  "  (i.e.  the  Italian  legal  doctrine)  "  desshalb  kein 
todstraff  setzen,  so  wil  vns  nit  geziemen  darauf?  ein  todstrafY  zu 

'1  This  obtaining  of  ad\dce,  in  all  more  important  eases,  from  those 
learned  in  the  law  was  in  accordance  with  other  contemporary  legal 
practices.  It  is  well  known  that,  as  early  as  this,  advice  was  sought  at 
other  courts  deemed  learned  in  the  law,  the  so-called  '"Oberhofen." 
Since  the  1100  s  the  rule  came  more  and  more  to  prevail  that  serious 
offenses  should  be  tried  before  the  local  sovereign  and  his  court.  Cf. 
Schallte,  "Lehrbuch  der  Deutsche  Reichs-  und  Rechtsgescliichte "  (od 
ed.),  §  119. 

^2  Schwarzenberg,  146. 

210 


Chapter  VII]       GERMANY'S   RECEPTION   OF   THE   ROMAN    LAW      [§  42 

ordnen."  ^^  This  attitude  must  be  borne  in  mind,  in  order  to 
understand  the  subsequent  singuhir  fate  of  the  "  Carolina." 

§  42.  The  Penalties  of  the  Bambergensis.  —  In  its  treatment 
of  punishments,  the  ItaHan  legal  practice  was  obliged  to  recognize 
many  deviations  from  the  Roman  law.  The  Roman  system  of 
punishment  prevailed  only  insofar  as  it  contained  penalties  which 
were  not  unknown  to  the  German  law.  Instead  of  the  Roman 
penalties  of  imprisonment,  there  obtained  for  the  most  part  the 
punishments  by  mutilation,  of  the  later  Middle  Ages.  This  prin- 
ciple was  also  adhered  to  by  Schwarzenberg.  He  either  aflopted 
the  penalties  of  the  existing  Bamberger  law,  with  which  he  was 
familiar,  or  else  left  the  choice  of  this  or  that  kind  of  punishment 
to  judicial  discretion.  The  manner  of  inflicting  capital  punish- 
ment he  left  often  to  local  custom.^  The  Italian  legal  learning 
by  no  means  covered  the  statute  law  in  its  entirety,  although  it 
drew  upon  it  extensively  for  examples.  All  that  range  of  acts 
which  we  comprehend  under  the  name  of  offenses  against  police 
measures,  or  misdemeanors  ("  Uebertretungen  "),  were  touched 
upon  only  incidentally. 

With  far-reaching  reforms  in  the  substantive  law  and  with  new 
ideas,^  Schwarzenberg  did  not  concern  himself.  He  desired  simply 
to  employ  what  had  been  established  by  the  Italian  legal  practice 
and  make  it  available  for  Germany  and  primarily  for  Bamberg.^ 
Consequently  it  is  not  surprising  that  Schwarzenberg  adopted 
the  system  of  punishments  of  his  time,  with  a  large  share  of  its 
inhuman  and  even  revolting  features,  and  with  its  aggravated 

13  Cf.  Brunnenmeister,  p.  205.  The  extent  to  which  respect  for  the 
Roman  law  obtained  in  the  Bambergensis  is  also  to  be  seen  in  the  dis- 
tinction between  "furtum  manifestum"  and  '"furtum  nee  manifestum." 
Tliis  was  taken  from  the  Roman  law,  and  was  alien  and  contradictory  to 
German  legal  conceptions  (Arts.  183,  184).  Here  tlie  Bambergensis 
is  more  Roman  than  even  the  ItaUaa  legal  practice  itself.  Cf.  lirunnen- 
meistcr,  p.  280. 

1  However,  in  many  cases  the  form  of  the  death  penalty  is  precisely 
specified,  e.g.  death  by  burning. 

2  Rriinnenmeister,  p.  .^9. 

'  It  is  incorrect  to  infer  (as  does  Halschner,  "System  des  preussischen 
Strafrechts"  (1858)  11,  pp.  103  el  seq.)  that  Article  14(5  of  the  "Bamber- 
gensis" defined  the  special  offense  of  child-inunh'r  in  the  modern  sense. 
At  most  it  can  be  said  that  SchwarzenbiTg  had  an  in(h'finit(>  fecHng  tliat 
under  some  circumstances  the  mitigaticjn  of  tlie  puiiishinent  \v;is  justifiable. 
The  punishments  for  this  crime  in  the  neighl)oring  \iirnb(>rg  were  abso- 
lutely revolting,  and  for  this  reason  there  occur  in  the  Bamb.>rgensis 
the  words  "darynnen  verzweyfllung  zu  verhüten."  It  is  also  stati-d  at  the 
end  of  the  Article  that  the  deed  is  an  inhuman  and  unchristian  one.  and 
entailed  the  punishments  of  burying  alive  and  impaling  upon  pikes  if  the 
prevalence  of  the  crime  seemed  to  render  special  severity  neci-ssary. 

211 


§  42]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

forms  of  capital  punishment  —  burning?,  brcakinj?  on  the  wheel, 
pinching  with  hot  tongs,  quartering,  and  burying  aHve.  The 
reproach  which  has  here  been  heaped  upon  Schwarzenberg  dur- 
ing the  past  century  of  historical  research  is  unjust.  To  have 
created  a  substantial  change  in  the  prevailing  system  of  punish- 
ments would  scarcely  have  been  possible  even  for  a  powerful 
lawgiver,  —  much  less  so  for  the  feudal  lord  of  a  minor  territory. 
The  system  of  community  and  civic  life  of  the  period  did  not 
believe  that  it  could  protect  itself  against  its  enemies  without  severe 
and  harsh  punishments.  Moreover,  whenever  and  so  far  as  to 
him  it  seemed  possible,  Schwarzenberg  did,  as  a  matter  of  fact, 
show  himself  to  be  governed  by  feelings  of  humanity.  This  is 
evidenced  by  his  efforts  to  make  more  careful  definitions,  and  by 
his  efforts,  where  some  frightful  penalties  were  being  applied 
indiscriminately  to  acts  of  both  greater  and  lesser  criminal  grades, 
to  limit  them  to  the  former."*  Certainly  he  did  not  collect  into 
a  general  code  all  the  kinds  of  punishment  then  contained  in  the 
various  special  statutes  of  the  South  of  Germany.  Comparison 
with  the  Nürnberg  practice  ^  shows  that  its  punishments  (which 
were  particularly  cruel  and  harsh)  were  not  adopted  as  a  whole 
by  the  Bambergensis. 

Relation  of  the  Bambergensis  to  the  Local  Law.  —  The  manner 
in  which  the  chief  achievements  of  the  Italian  legal  learning  ^ 
were  assimilated  by  this  author  (who,  while  perhaps  not  an  abso- 
lute genius,  was  clear  in  thought  and  careful  in  investigation) 
rendered  his  work  far  superior  to  the  earlier  "  Klagspiegel  "  (of 
which  he  made  use)  and  to  the  "  Wormser  Reformation  "  ^  and 
the  "  Maximilianischen  Halsgerichtsordnungen."  ^  The  im- 
proved distinction  of  "  dolus  "  (fraud  or  malice)  and  "  culpa  " 

^  Cf.  e.g.  Art.  162  •  "Item  ein  yeder  mörder  oder  todtsehleger  hat  (wo 
er  desshalb  nit  rechtmessig  entsehuldigung  aussflirn  kann)  das  leben 
verwirkt.  Aber  nach  gewohnheit  etlicher  gegent  werden  die  fiirsetzlichen 
mörder  vnd  todtsehleger  einander  gleyeh  mit  dem  Rade  gerieht,  darinnen 
soll  vnterscheyde  gehalten  werden.  .  .  ."  Cf.  Art.  156  relative  to  child 
murder. 

*  Brunnenmeister,  pp.  72  et  seq. 

^  As  Brunnenmeister  accurately  shows,  Schwarzenberg  avaüed  himself 
especially  of  Gandinus  and  Aretinus. 

^  Both  are  made  use  of.     Cf.  Brunnenmeister,  pp.  172  et  seq. 

*  These  were  not  made  use  of  by  Schwarzenberg.  Cf.  Brunnenmeister, 
p.  102. 

"From  the  "Bamberger  Stadtrecht",  which  Zöpfl  sought  to  show  was 
one  of  the  chief  sources  of  the  Bambergensis,  the  latter  borrowed  only 
a  few  formulas  of  criminal  procedure.  And  these  were  in  part  given  up 
as  meaningless  by  the  "Carolina."  Cf.  Brunnenmeister,  pp.  1  et  seq.  and 
especially  p.  32. 

212 


Chapter  VII]      Germany's  reception  of  the  roman  law     [§42 

(negligence),^  the  adoption  of  a  doctrine  of  attempt,  and  the  cor- 
rect Itahan  theory  of  self-defense,^''  —  these  already  had  in  all 
essentials  been  correctly  accepted  in  the  "  Klagspiegel."  But 
besides  these,  we  find  in  the  Bambergensis  a  number  of  ex- 
cellent definitions  of  offenses ;  for  the  most  part  they  were  taken 
from  the  Italian  jurists ;  but  Schwarzenberg,  being  very  familiar 
with  the  native  law,  shows  a  certain  freer  method  of  treatment 
and  a  frequent  respect  for  the  native  law." 

Just  as  the  Italian  legal  learning  seldom  dealt  with  local  rules 
of  punishment,  out  of  which  it  seemed  impossible  to  formulate 
a  general  theory,  so  the  Bambergensis  did  not  concern  itself 
with  criminal  matters  which  were  settled  "  bürgerlich  "  {i.e. 
by  local  law),  or,  as  the  phrase  also  ran,  "  im  freundlichen  Recht." 
Moreover,  it  did  not  concern  itself  with  acts  punishable  only  with 
money  fines  or  short  imprisonment,  and  for  which  in  no  instance 
was  torture  to  be  applied.  The  most  it  says  on  these  subjects 
is  that  certain  acts  are  not  of  a  serious  criminal  nature  and  should 
only  be  punished  "  bürgerlich  "  {i.e.  according  to  the  custom 
of  the  locality). ^^  On  the  other  hand,  it  was  necessary,  if  the 
desired  legal  protection  in  the  province  of  criminal  law  was  to  be 
effective,  to  do  away  with  local  custom  ^^  completely  in  the  field 
of  criminal  law  proper  {i.e.,  serious  offenses),  and  to  this  extent 
to  treat  the  Italian  legal  practice  as  exclusively  valid.  This  is 
the  meaning  of  Art.  125,  so  often  cited. ^^  This  passage  does  not 
forbid  them  to  treat  an  act  as  criminal  by  analogy  to  a  criminal 
statute,  as  some  ^^  (in  opposition  to  the  general  opinion)  have 
believed.  Of  such  a  rule  the  Italian  legal  practice  of  that  time 
had  no  thought,  and  it  was  far  removed  from  the  ideas  of  the 

9  Art.  172. 

10  In  tlie  consideration  of  participation  in  crime,  in  Art.  203,  reference 
is  simply  made  to  the  Italians. 

"  CJ.  e.g.  Art.  194.     "Von  lioltz  stelen  oder  hawen." 

'2  r/.  Henke,  II,  p.  79.  Hofacker  in  "Neues  Archiv  des  Criminal- 
rechts",  V,  pp.  446  et  seq.;    Brunnenmeister,  p.  242. 

'3  The  meaning  of  which  might  be  completely  perverted  by  tho 
"Schöffen." 

'^  "  .  .  .  Aber  sunderlich  ist  zumercken  in  was  sachen  oder  derselben 
gleychen  die  Kayserlichen  recht  keinerley  peinlicher  straff  am  leben,  eren 
leyb,  oder  glidern  setzen  oder  verhengen.  das  unsere  Hi(-litfr  und  vrtliey- 
ler  dawider  auch  nicmant  zum  tode,  oder  sunst  ju'lnlich  straffen  ..." 
("It  is  especially  to  be  observed  in  what  cases  and  under  wliat  facts 
analogous  thereto  the  Roman  law  did  not  fi.\  and  inflict  punishment  of  lifo 
and  limb,  so  that  our  judges  and  tribunals  may  in  contradiction  thereto 
punish  no  one  by  capital  j)unishment  or  in  any  other  way.") 

'*  CJ.  e.g.  Feuerhach,  "Revision  der  Grundsätze  und  Grundbegriffe  des 
positiven  peinlichen  Rechts"  (1799),  pp.  2(5  et  seq.;  Birnbaum,  "Neues 
Archiv  des  Criminab-echts",  XIII  (18:33),  p.  591. 

213 


§  42]      THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

later  German  doctrine.  It  was  only  the  inferior  judges  to  whom 
anal<)t,nes  of  this  sort  were  forbidden. 

Intrinsic  Merit  of  the  Bambergensis.  —  In  respect  to  the  funda- 
mental conception  of  criminal  law,  no  advance  beyond  the  ideas 
prevailing  at  the  end  of  the  Middle  Ages  is  to  be  observerl  in  the 
Bambergensis.  Clear  expression  is  found  of  that  same  identi- 
fication of  divine  and  human  justice  which  characterized  the 
later  Middle  Ages  and  continued  so  long  into  modern  times. 
This  is  to  be  seen  in  the  penalties  for  blasphemy,  heresy,  sorcery, 
and  unchastity  in  crimes  against  nature.  In  an  ecclesiastical 
principality,  anything  different  was  not  to  be  expected.  More- 
over, although  the  Bambergensis  indulged  somewhat  in  specu- 
lation, we  encounter  no  trace  of  a  doubt  as  to  whether  or  not 
the  cruel  criminal  law  of  the  times  was  really  justifiable. 

Yet  upon  this  religious  and  theological  foundation  we  find 
striking  manifestations  of  a  most  ardent  love  for  justice,  a  firm 
moral  earnestness  in  searching  out  and  prosecuting  every  abuse,^^ 
and  the  fear  of  doing  injustice  to  the  poor  and  lowly. ^"  It  may 
be  true,^^  in  the  striking  phrase  ^^  of  Sohm,  that  the  Bambergensis 
and  the  Carolina  are  textbooks  of  the  Italian  criminal  law.  Yet 
when  we  consider  the  pithiness  and  appropriateness  of  their 
language,  and  the  manner  in  which  this  statutory  sanction  and 
(as  it  were)  adoption  of  an  originally  foreign  law  took  place,  we 
may  well  regard  it  as  a  notable  example  of  German  industry, 
conscientiousness,  and  solidity.  It  is  something  of  which  we 
may  justly  be  proud.  The  Carolina  was  forthwith  cited  with 
the  greatest  respect  by  the  leading  Italian  jurists. 

Recognition  of  the  Bambergensis  outside  of  Bamberg.  —  The 
Bambergensis  proved  its  value.  Even  outside  of  the  prin- 
cipality of  Bamberg,  inferior  courts  began  to  regard  the  expres- 
sions of  the  Bambergensis   as  authoritative.""      Their  attitude 

'^  Thus,  e.g.,  eoniiscation  of  property  as  a  punishment  for  suicide  is  not 
allowed.  However,  the  Bambergensis  proceeds  upon  the  principle,  so 
widespread  in  South  Germany,  that  confiscation  of  property  is  impliedly 
entailed  by  all  crimes  meriting  the  death  penalty.  Cf.  ante,  §§38  et 
seq.;    also  Brunnenmeister,  pp.  21,  22  and  193  et  seq. 

'^  Art.  175:  "wann  zu  grossen  Sachen  (als  zwischen  dem  gemeinen 
nutz  vnd  des  menschen  plut)  grosser  ernsthafftiger  fleiss  gehört  vnd 
ankert  sol  werden."  ("Since  in  important  matters  (as  between  the  com- 
mon good  and  human  blood)  there  belongs  and  should  be  exercised  very 
great  earnestness  and  care.") 

^^  Cf.  Von  Savigny,  "Vom  Berufe  unserer  Zeit  für  Gesetzgebung",  p.  52. 

'^  In  Grünhut' s  " Zeitselirif t  für  das  Privat-  und  öffentliche  Recht  der 
Gegenwart"  (1874),  p.  263. 

-"  The  prefaces  to  the  various  editions  describe  it  as  of  ser\aee  to  cities, 

214 


Chapter  VII]       GERMANY'S   RECEPTION   OF   THE    ROMAN    LAW      [§  43 

was  furthered  by  the  fact  that  the  Bamber^'ensis,  in  deahiig  with 
points  which  did  not  seem  to  it  to  be  sufficiently  estabhshed  in 
le<,^al  practice,  had  o})served  cautious  hmitations,  and  within 
certain  bounds  had  preserved  local  custom.  A  short  and  popu- 
larly esteemed  encyclopedia  ^^  of  the  secular  law^  of  the  times, 
known  as  tlie  "  Layenspiegel  ",  and  composed  by  the  secretary 
to  the  Nördlingen  council,  llrich  Tengler,--  reproduced  in  its 
third  part,  dealing  with  criminal  procedure,  substantially  the 
contents  of  the  Bambergensis.  This  was  expressed,  h()we\-er,  in 
a  more  theoretical  form,  in  brief  and  general  maxims.  Through 
this  book  the  courts  were  given  an  even  greater  familiarity  with 
the  Bambergensis  and  the  Italian  legal  learning.  In  1516,  with 
only  a  few  changes,  the  Bambergensis,  reproduced  in  the  "  Bran- 
denburgische Halsgerichtsordnung ",  w^as  introduced  into  the 
Frankish  territories  of  the  margravate  of  Brandenburg. 

§43.  The  "Carolina." — Thus  the  Bambergensis  now  pre- 
sented itself  as  the  natural  foundation  for  a  general  statute  regu- 
lating procedure  in  criminal  courts  {i.e.  "  peinliche  Gerichtsord- 
nung ")  and  applying  to  the  entire  empire.  In  spite  of  the 
complaints  ^  as  to  the  shortcomings  of  the  criminal  law%  repeatedly 
brought  to  the  knowledge  of  the  Reichstag,  no  action  had  yet 
been  taken.  But  finally,  at  the  Reichstag  of  Worms,  in  1521, 
the  reform  of  criminal  justice  was  again  taken  up,  and  this  time 
in  earnest.  The  commission,  for  that  purpose  appointed,  was 
able  on  the  21st  of  Ai)ril,  1521,  to  submit  a  draft  to  the  States 
for  further  action.^  This  draft  was  essentially  a  reproduction  of 
the  Bambergensis,  but  it  also  made  use  of  the  so-calle(l  "  Cor- 
rectorium  Bambergensis  ",  a  collection  of  Bamberg  decisions  and 
ordinances  of  the  years  1507  to  1515,  which  explained,  supple- 
mented,   and   changed    particular   points   in   the    Baml)ergensis.''' 

communes,  administrative  councils,  official  classes,  etc.  Cf.  Stnbhe, 
"Geschichte  der  deutschen  Rechtsquellen",  p.  241.  Concerning  tho 
separate  editions,  cf.  Rosshirt,  "Neues  Archiv  d.  Criminalrechts",  IX. 
pp.  245  et  seq.:  Slobbe  {ante).  The  first  edition,  by  Ildiinscn  PfcijU.  ap- 
pearedin  BamlxTfrin  l.")07.  Tlu>  five  following  edit  ions  (i.e.  until  \'yA'.^)  were 
printed  in  Mainz  l)y  Schöffer.  An  altered  edition  appeared  again  in 
Bamberg  in  1580  (of  this  a  second  edition  in  1738).  As  to  the  later 
editions,  see  post. 

-'  CJ.  Stinlzitif/,  "Geschichte  der  pop.  Lit.",  p.  440;  "Geschichte  der 
Rechtswissenscliaft",  pp.  85  ei  scq. 

22  Published  first  in  1.509. 

'  Cf.  e.g.  the  Mainz  memorial  of  the  States  of  the  empire  to  the  Kaiser 
in  1517.     Cf.  Harpprecht,  "Staatsarchiv",  111,  p.  3()5 ;    Giitcrhock,  p.  25. 

2  Güterbock,  p.  45. 

^  Cf.  as  to  the  so-called  " Correct orium",  Ilohharh,  in  "Neues  Archiv 

215 


§  43]     THE  RENASCENCE  AND  THE  REFORMATION      [Pakt  I,  Titlk  III 

This  draft,''  first  submitted  to  the  Administrative  (oiincil 
("  lleichsregiment  "),  did  not  become  a  hivv ;  nor  did  the 
second  draft  proposed  by  the  Achninistrative  Council  at 
Nürnberg  in  1524.''  A  third  draft  was  submitted  to  the 
lleichstag  at  Spier  in  1529.  Finally,  a  fourth  draft,  submitted 
in  15;5()  to  the  Reichstag  at  Augsburg,  was  enacted  as  law  by 
the  Reichstag  at  Regensburg  in  July,  15.32,  under  the  name  of 
"  Kaiser  Karls  des  funfi'ten  untl  des  heyligen  römischen  Reichs 
peinlich  gerichtsordnung."  ^ 

Local  Opposition.  The  "Saving  Clause." — The  opposition 
which  had  to  be  overcome  in  the  introduction  of  a  criminal  code 
of  such  a  general  nature  consisted  for  the  most  part  in  the  far- 
reaching  demand  for  the  preservation  of  specific  local  rules  of 
law.  Many  States  opposed  the  "  Halsgerichtsordnung  "  because 
they  regarded  it  as  an  attack  on  their  hard-won  autonomy,  and 
as  an  encroachment  upon  the  (extremely  summary)  method  of 
criminal  justice  practised  by  them.  On  behalf  of  the  City  of 
Ulm,  at  the  Town  Assembly  at  Esslingen,  in  1523,  the  following 
declaration  was  made  :  ^  "  The  '  Halsgerichtsordnung  '  tends 
solely  to  the  disadvantage  of  the  States  of  the  realm,  and  can 
only  be  understood  as  encouraging  and  fostering  all  criminals." 
Electoral  Saxony,  with  other  States,  e.g.  Electoral  Brandenburg, 
joined  in  opposing  the  "  Halsgerichtsordnung  ",  because  its  pro- 
visions appeared  irreconcilable  with  the  Saxon  law  and  the  right 
of  "  Taidigung  "  (private  composition)  ^  still  in  force  there.  The 
result  of  these  circumstances  is  to  be  seen  in  the  so-called  "  sal- 

des  Criminalrechts",  1844,  pp.  233  et  seq.,  1845,  pp.  105  et  seq.,  173  et  seq. 
Cf.  also  Güterbock,  pp.  61  et  seq.;   Stintzing,  I,  p.  514. 

^  Schwarzenberg,  although  a  member  of  the  Administrative  Council 
("Reichsregiment"),  probably  took  no  part  in  the  composition  of  the 
first  draft. 

^  This  draft  was  in  recent  times  accidentally  re-discovered  by  Güter- 
bock in  the  "Königsberger  Provincialarchiv."  {Cf.  Güterbock,  pp.  85  et 
seq.)  The  manuscript  had  been  brought  to  Königsberg  by  Schwarzen- 
berg, who  in  the  years  1526  and  1527  resided  at  Königsberg  with  Duke 
Albrecht  of  Prussia.  It  may  well  be  maintained  that  Schwarzenberg 
took  part  in  the  preparation  of  the  Nürnberg  draft.     Cf.  Güterbock,  p.  93. 

^Generally  referred  to  by  the  abbreviation  P.G.O.  {i.e.  "peinliche 
Gerichtsordnung")  or  C.C.C.  {i.e.  "Caroli  constitutio  criminalis").  As 
a  matter  of  fact,  Charles  V  had  done  very  little  towards  this  legislative 
work. 

''  "Die  Halsgeriehtsordnung  sei  niemandem  mehr  als  den  Reichsstäden 
zum  Nachtheil  erdacht  und  zu  nichts  fürständiger,  als  alle  Uebelthäter 
zu  harzen  und  zu  pflanzen."  Cf.  Abegg  in  "Archiv  des  Criminalrechts" 
(N.  F.  1854),  pp.  441  et  seq. 

^  I.e.  "Wergeid"  and  "Busse."  Cf.  the  declaration  of  the  Saxon 
chancellor  Christian  Baier,  quoted  by  Güterbock,  pp.  136,  185. 

216 


Chaptek  VII]     Germany's  reception  of  the  romax  law     [§  44 

vatorische  Clausel  "  ^  {i.e.  savins;  clause)  of  the  preface  to  tlie 
Carolina:  "Yet  We,  in  gracious  consideration  of  the  electors, 
the  princes  and  the  States,  desire  in  no  way  to  detract  from  their 
ancient  and  well-established  legal  and  customary  usages."  '" 

Nevertheless,  the  Carolina  was  not  hereby  (as  is  often  incor- 
rectly assumed)  ^^  reduced  to  the  mere  position  of  a  code  oft'ered 
to  the  States  for  their  acceptance.'-  Its  pro\isions  appear, 
indeed,  as  a  rule,  as  compared  to  the  well-established  legal  customs, 
to  have  only  subsidiary  validity.'^  But  to  some  provisions,  as 
exceptions,  is  attributed  the  force  of  absolutely  binding  rules." 
The  limitation  contained  in  the  wording  of  the  clause  that  nrir 
laws  in  contravention  to  the  Carolina  were  not  to  be  introduced, 
was  also  later  ignored  by  the  States  of  the  realm.  However, 
other  circumstances  than  the  Saving  Clause  and  the  ()pi)osition 
in  support  of  local  rules,  contributed  to  the  peculiar  fate  of  the 
Carolina. 

§  44.  Comparison  of  the  Carolina  and  the  Bambergensis.  — 
Both  in  its  general  plan  and  in  by  far  the  greater  number  of  its 
individual  provisions,  the  Carolina  corresponds  very  closely  '  to 
the  Bambergensis.  Like  the  Bambergensis,  it  is  j)rimarily  a  sys- 
tem of  procedure.  Like  the  Bambergensis,  it  treats  of  the  sub- 
stantive criminal  law  incidentally,  in  dealing  with  sentences.- 
General  theories  are  in  part  treated,  along  with  the  crimes  in 
which  they  appear  of  especial  importance,  e.g.  self-defense  is 
treated  along  with   homicide. 

Yet  it  is  by  no  means  a  mere  copy  of  the  Bambergensis  with 
occasional  changes  in  those  designations  of  persons  and  things 
appropriate  only  to  Bamberg.  Apart  from  provisions  relating 
to  procedure,  an  essential  improvement  can  be  noted  in  Article 
145,  which  places  very  substantial  limitations  ui)on  confiscation 

^  We  find  a  similar  clause  in  the  "Reichspolizeiordnungen"  ("Imperial 
Police  Regulations").     Cf.  Stohhe,  II,  p.  ISG. 

'""Doch  wollen  wir  durch  dise  gn(>(lifr<'  erinnerung  Churfürsten.  Für- 
sten vnnd  Stendon,  an  jron  alten  wolhcrgi-hrachten  rechtmes.sigen  vnd 
l)illichen  gchreuchen,  nichts  hciiotnincii  hahcn." 

"  K.(/.  (leih,  "  Lelirhuch  des  (h'utschcn  Strafrechts",  I,  p.  27G. 

'^  This  conclusion  is  thoroughly  confuted  by  Von  Wächter,  "Gemeines 
Recht",  pp.  31  et  seq.      Cf.  also  Güterbock,  p.  194. 

>' C/.  Stintzing,  "Geschichte  der  deutschen  Rechtswissenschaft",  p. 
627. 

'^  Cf.  Arts.  61,  104,  105,  135,  140,  204,  and  also  Art.  218  dealing  es- 
pecially with  abuses. 

•  The  number  of  Articles  is  different.  The  Bambergensis  contains  27S 
Articles  and  the  Carolina  contains  219. 

2  Arts.  104-180. 

217 


§  44]     THE  RENASCENCE  AND  THE  REFORMATION      [Paut  I,  Title  III 

of  property,  and  also  in  Article  218,  dealing  with  various  abuses. 
The  Carolina,  since  it  sets  forth  the  generally  prevailing  law, 
corresponds  even  more  closely  than  the  Bambergensis  to  the 
doctrines  of  the  Italian  legal  practice.  In  various  aspects  may 
be  noticed  the  assistance  received  from  the  jurists.  Local  law, 
as  it  was  contained  in  the  Bambergensis,  is  abandoned.  The 
activities  of  the  Reformation,  which  had  now  intervened,  had 
led  to  changes  in  only  a  few  passages,  as,  for  example,  the  absence 
in  certain  places  of  mention  of  the  clergy.^  The  omission  of  Article 
130  of  the  Bambergensis,  dealing  with  heresy,  was  occasioned  not 
so  much  by  the  view  that  heresy  was  not  a  crime,  but  rather 
because  spiritual  jurisdiction  was  no  longer  recognized  in  the  way 
it  had  been  recognized  in  Article  130.^ 

Careless  Manner  of  Publication.  —  The  publication  of  this 
new  and  important  imperial  statute  was  made  in  a  peculiarly 
careless  manner.  It  was  intended  to  be  directly  binding  not  only 
upon  the  States  of  the  empire,  but  also  upon  all  subjects  and  de- 
pendencies of  the  empire,  and  particularly  upon  all  official  authori- 
ties. Publication  took  place  at  the  press  of  the  Mainz  printer, 
Ivo  Schofler,  who  was  given  a  special  privilege  for  this  purpose. 
In  this  privilege  it  is  declared  :  "es  soll  auch  keynem  andern  ge- 
druckten Abschiedt  an  eynichen  ort  inn  oder  ausserhalb  gerichts 
oder  rechts  geglaubt  werden."  '"  And  yet  not  a  single  copy  of  the 
original  was  retained  by  the  imperial  officials.  Presumably 
the  only  original  text  was  the  one  delivered  to  the  printer.  The 
principal  edition  of  February,  1533  (there  is  a  dispute  as  to  the 
existence  of  an  earlier  edition),  is  not  free  from  typographical 
errors,  and  there  is  also  no  lack  of  mistakes  in  the  writing  and 
editorial  work  of  the  original  draft.  Often  these  mistakes  are 
such  as  to  make  it  difficult  to  ascertain  the  meaning.^  Because 
of  these  difficulties,  an  edition  satisfying  all  critical  requirements 
is  not  extant,  and  indeed  only  became  possible  after  Giiterbock's 
investigations  of  the  original  records.^ 

3  Cf.  Stintzing,  "Geschichte",  I,  pp.  628,  629. 

*  Güferhock,  pp .  260  et  seq. 

^  Giiterhock,  p.  207.  "No  faith  or  credit  shall  be  given  to  any  copy 
printed  in  any  other  place  within  or  ^s-ithout  court  or  law." 

^  Gtiterbock,  pp.  217  et  seq. 

'  Later  editions  were  prepared  by  Koch,  Reinhold  Schmid,  and  Zöpfl. 
The  edition  by  R.  Schmid  also  gives  the  text  of  the  "Bambergensis." 
The  edition  by  Zöpfl  (1842)  contains  the  "Bambergensis",  the  "Branden- 
burgica",  also  the  draft  {i.e.  preliminary  draft)  of  1521  (Worms)  and  that 
of  1Ö29  (Speier),  here  referred  to  as  the  first  and  second  drafts.  An 
edition  by  Züpfl  in  1876  gives  in  a  sj^noptic  form  the  Carolina,  the  Bam- 

218 


Chapter  VII]       GERMANY'S   RECEPTION   OF  THE   ROMAN    LAW      [§  44 

Varied  Application  of  the  Carolina.  —  The  Saving  Tlause  of  the 
Carolina  rendered  possible  a  great  diversity  of  conditions  in  the 
various  States.  If  in  a  given  jurisdiction  the  abuses  so  vigorously 
repudiated  by  the  Carolina  did  not  exist,  one  might  even  hold 
the  opinion  that  all  of  the  former  law  could  be  included  under 
the  "  good  customs  theretofore  in  use  ",  and  that  these  therefore 
had  not  been  altered  by  the  Carolina,  and  that  consequently  the 
Carolina  could  be  simply  ignored.  It  was  also  possible  to  make 
a  special  edition  of  the  Carolina  with  modifications  and  supple- 
ments, clearly  showing,  for  the  provincial  courts,  the  rules  which 
were  valid  along  with  the  Carolina  as  "  good  "  custom  in  varia- 
tion therefrom.  Or,  again,  Carolina  might  be  adopted  literally 
and  completely,  and  published  without  local  addenda,  on  the 
ground  either  that  special  customs  in  addition  to  the  Carolina 
did  not  there  exist,  or  that  the  courts  would  not  be  in  doubt  in 
respect  to  them. 

All  of  these  above-mentioned  attitudes  were  taken.  The 
"  Rechtsbuch  "  of  Rottweil,  of  154G,  and  the  statutes  of  the  city 
of  Frankenhausen  of  1558,  merely  reproduced  their  earlier  law, 
paying  no  attention  to  the  Carolina.  The  new  "  Brandenburgica  " 
of  1582  was  a  reproduction  of  the  "  Brandenburgica  "  of  1516, 
with  a  few  supplements  referring  to  the  Carolina.  The  "  Landes- 
ordnung "  of  Henneburg  of  1539  was  a  new  compilation,  consist- 
ing of  specific  provisions  of  the  Carolina  and  a  reproduction  of  a 
"  Landesordnung  "  of  Tyrol  of  1532.^  Publications  of  the  Caro- 
lina with  no  additions  at  all  were  made  e.g.  in  Electoral  Cologne 
in  1538,  in  the  "  Coiner  Reformation  "  of  the  secular  courts,  by 
the  Duke  of  Pomerania  in  15G6,  and  in  15G4  by  Duke  Heinrich  of 
Braunschweig-Wolfenbiittel.  Simple  instructions  to  the  courts 
to  be  guided  by  the  Carolina  were  given  in  Electoral  Brandenburg 
in  1540,^  and  in  the  "  Ilofgerichtsordnung  "  of  Celle  in  150-4.^° 
Modifications  of  specific  provisions  only  of  the  Carolina  were 
made  e.g.  in  the  Frankfurt  "  Reformation  "  of  1578,  and  to  a 
greater    extent    in    the    "  Malefizprocessordnung "    for    Bavaria, 

bergensis,  the  "Brandenburgica",  and  both  the  above-mentioned  drafts. 
A  small  edition  by  Zöpfl  of  the  text  only  of  the  Carolina  api)eared  in  1870. 
Cf.  also  G.  W.  Böhmer,  "Ueber  die  authentiselien  Ausgaben  der  Caro- 
lina" (Göttingen,  1837).  [But  now  see  the  citations  in  note  1,  §  40, 
ante.  —  Ed.] 

8  This  is  based  upon  the  "Malefizordnung"  of  1499  and  the  "  Frei- 
burger  Stadtrecht." 

^  Hnlschrter,  "Geschichte  des  Brandenburgisch-Preussischen  Straf- 
rechts" (185.5),  p.  113. 

"  Cf.  Von  Wächter,  "Gemeines  Recht",  pp.  38  et  seq. 

219 


§  44]      THE  RENASCENCE  AND  THE  REFORMATION      [Pakt  I,  Titlk  III 

Avliich  formed   the  last   part  of  the  Bavarian   "  Landrecht  "  of 

General  Effect  of  the  Carolina.  —  As  a  matter  of  fact,  the  influ- 
ence of  the  Carolina  over  the  local  laws  was  much  stronger  than 
might  be  inferred  from  the  wording  of  the  Saving  C'lause.  Ac- 
tually, it  obtained  general  force,  to  the  extent  that  deviations 
therefrom  could  not  be  justified  by  appeal  to  statute  or  special 
custom.  The  intrinsic  merit  of  the  work  secured  for  its  common 
law  a  predominance  for  a  long  period,  in  spite  of  the  increasingly 
prevailing  tendencies  towards  local  autonomy. 

Especially  in  the  south  of  Germany,  the  services  rendered 
by  the  Carolina  to  the  legal  conditions  of  the  times  were  clearly 
manifest.  The  greater  exactness  and  precision  of  definition  which 
characterized  the  Carolina,  as  contrasted  with  earlier  legislation^ 
were  important  features.  The  same  may  be  said  of  its  suppres- 
sion of  numerous  abuses,  and  of  its  elimination  of  provisions  in 
the  nature  of  rules  of  proof  completely  perverted  or  no  longer 
suitable  in  the  new  state  of  legal  knowledge.  As  already  noted, 
the  punishments  of  the  Carolina,  as  contrasted  with  those  of  the 
south  of  Germany,  may  upon  the  whole  be  regarded  as  mild.  The 
gradual  elimination  of  "  Taidigung  "  (i.e.  private  composition) 
and  of  judicial  discretion  in  sentences,  was  a  step  in  advance,  even 
though  individual  cases  thereby  lost  the  benefit  of  judgments 
based  upon  humane  considerations.  But  in  the  north  of  Ger- 
many the  case  was  somewhat  different.  There  the  Carolina 
brought  about  an  increase  in  the  severity  of  penalties.  Punish- 
ments by  mutilation  had  previously  been  practised  but  little. 
The  Carolina,  by  sanctioning  the  purely  inquisitorial  form  of 
procedure,  perhaps  prevented  the  development  of  a  form  of  pro- 
cedure corresponding  more  nearly  to  the  earlier  German  law. 


220 


Chapter  VIII 


GERMANY  IN  THE  LATE   InOOs  AND  THE   1600  s 


§45. 


§46. 


§47. 


§48. 
§49. 


Relation  of  the  Carolina  to 
the  Reformation.  Reli- 
gious Tolerance.  Un- 
fortunate Results  of  the 
Reformation. 

The  Literature  of  the  1500  s 
and  1600  s.  The  Juris- 
consults and  the  Law 
Faculties. 

Domination  of  Theology. 
Witchcraft  and  Blasphemy 
as  Crimes. 

Despotism  of  the  Rulers. 

"Lese  Majeste"  as  a  Crime. 


§  50.  Abuses  of  the  Criminal  Law  ; 
the   Case   of   lioym. 

§  51.  Scantiness  of  Legislation. 
Evasion  of  the  Carolina. 
Berlich  and  Carpzov. 

§  52.  Recognition  of  the  Principle 
of  Mitigating  Circum- 
stances. Rise  of  Im- 
prisonment as  a  Penalty. 
Changes  in  the.  Law  of 
Proof. 

§  53.  Doctrines  as  to  .Judicial  Dis- 
cretion in  Defining  Crimes. 


§  4').  Relation  of  the  Carolina  to  the  Reformation.  —  How 
the  Carolina  can  be  termed  '  "  an  achie\enient  of  the  sjjirit  of 
the  Reformation  "  is  certainly  not  clear.  This  would  have  the 
strange  implication  that  the  conscientiousness,  with  which  the 
Carolina  infuses  the  criminal  law,  was  not  a  general  charac- 
teristic of  the  Germanic  spirit,  but  merely  a  special  characteristic 
of  the  spirit  of  the  Reformation.  The  prominent  men  of  the 
times  were  indeed  all  under  the  influence  of  the  Reformation  ; 
this  sufficiently  explains  the  large  share  taken  in  the  Droduction 
of  the  Carolina  by  men  such  as  Schwarzenberg  and  Baier. 

Religious  Tolerance.  — As  a  matter  of  fact,  the  position  taken 
by  the  reformers  was  unfavorable,  rather  than  favorable,  to  i)rog- 
ress  in  the  general  conception  of  criminal  law.  Of  course,  since 
the  adherents  of  the  Confession  of  Augsburg  and  the  reformed 
faith  had  obtained  recognition  from  the  Empire,  there  could  be 
no  call  for  a  common  law  punishment  of  the  adherents  of  this 
Confession  ;  so  too,  in  the  Catholic  States,  the  impropri(>ty  of 
proceeding  against  them  imder  the  criminal  law  as  heretics  was 


1  Thus  Güterbock,  p.  207. 
221 


§  45]      THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  TiTLE  III 

gradually  established.  The  logical  consequence  of  the  Reforma- 
tion, since  it  demanded  a  free  and  open  examination  of  religious 
dogmas,  would  have  led  to  a  declaration  that  the  punishment  of 
heresy  was  not  permissible.  But  logic  has  not  always  been  ob- 
served by  religious  organizations ;  and  ultimately  the  persecution 
or  tolerance  of  those  of  another  faith  came  in  the  great  majority 
of  cases  to  be  merely  a  question  of  power. 

Luther,  to  be  sure,  had  at  first  expressly  denied  the  existence 
of  the  right  to  coerce  another  in  a  matter  pertaining  to  faith ;  - 
it  would  be  excellent  to  have  faith  and  convictions  entirely  free. 
But  like  Augustine,  when  he  acquired  greater  power,^  he  changed 
his  opinions ;  moreover,  the  excesses  of  the  Anabaptists  and  the 
Peasants'  War  warned  him  of  the  necessity  of  caution.'*  As  is 
well  known,  he  wTote  against  the  "  Meister  Omnes  "  and  the 
"  false  prophets  ",  and  advocated  reform  only  through  authority. 
When  even  the  mild-hearted  Melanchthon  ^  found  justification 
for  the  punishment  of  certain  heretics  on  the  grounds  of  blas- 
phemy (a  theory  which  for  a  long  time  afterwards  permitted  in 
Protestant  countries  a  prosecution  by  criminal  law  of  the  various 
sects), ^  it  is  not  to  be  wondered  at  ^  that  Calvin  and  his  followers 
preached  and  appear  ^  to  have  practised  the  old  persecutions 
of  heresy  in  their  harshest  and  most  repellent  form.  As  a  matter 
of  fact,  the  principle  of  freedom  of  religious  faith  was  not  achieved 


2  Cf.  Luther's  Works,  pubKshed  by  Jenischer,  Vol.  22,  p.  85.  As  to  the 
extent  to  which  obedience  is  due  to  worldly  authority,  "Heresy  can  never 
be  prevented  by  force",  p.  90. 

^  Cf.  the  wTiting :    "An  den  christhehen  Adel  deutscher  Nation." 

*  Cf.  also  Janet,  "Histoire  de  la  philosophie  morale  et  politique"  (2 
vols.,  Paris,  1868),  II,  pp.  38  et  seq. 

5  Works,  XII,  pp.  696  et  seq. 

^  Brunnemann,  "Tractatus  de  inquisitionis  processu",  IX,  n.  2,  asserts 
that  it  is  criminall.v  punishable  if  any  one  denied  the  truth  of  the  Ecu- 
menical Council.  Various  punishments  ("exilium",  "deportatio")  were 
inflicted  by  followers  of  the  Evangelical  churches,  the  death  penalty  was 
inflicted  by  the  Catholics.  Among  the  former  the  punishments  were 
mitigated  by  appeal  to  Novel  129  ("Hieretici  quiete  \aventes  asperius 
tractandi  non  sunt").  The  extent  of  the  conception  of  blasphemy  is 
evident  from  Damhouder,  "Praxis  rer.  crim.",  c.  60,  n.  11.  Hereunder  is 
included,  according  to  Damhouder :  "negare  Dei  filium  non  esse  verum 
hominem." 

^  Cf.  post.  Part  II,  under  "Historj^  of  the  Theories  of  Criminal  Law." 

*  Cf.  notably  the  well-known  and  repulsive  history  of  the  condemnation 
and  burning  of  Michael  Servetus  in  1553  at  Calvin's  instigation  {Gaberel, 
"Histoire  de  I'eglise  de  Geneve"  (1855),  II,  pp.  226  et  seq.  A  heresy  trial 
of  Valentin  Gentilis  was  prevented  in  Geneva,  —  he  was  in  1566  executed 
at  Berne.  The  esteemed  work  of  the  Geneva  divine,  Theodor  Beza,  "De 
hseretieis  a  eivili  magistratu  puniendis"  completely  embraced  the  theories 
of  the  Papists  in  regard  to  prosecutions  of  heresy. 

222 


Chapter  VIII]      GERMANY  IN  THE   1500  s   AND   1600  s  [§  40 

by  the  Reformers,  and  was  not  established  until  the  period  of 
Philosophy  in  the  1700  s. 

Unf ortvinate  Results  of  the  Reformation.  —  The  immediate 
result  of  the  Reformation  was  a  retrogression  in  the  general  con- 
ception of  law.^  While  the  antagonism  between  Church  and 
State  during  the  Middle  Ages  had  often  led  to  a  thoroughgoing 
and  critical  examination  of  the  doctrine  of  law  and  State,  and  the 
power  of  even  the  Pope  himself  was  often  substantially  limited 
by  appeal  to  the  "  Lex  natura^  ",  the  Reformers,  in  accordance 
with  the  doctrine  of  Paul,  "  All  authority  is  from  God  ",  readily 
regarded  divine  and  secular  law  as  identical.  Consequently  tiieir 
theory  of  criminal  law  was  nothing  other  than  a  complete  identi- 
fication of  secular  and  divine  justice.  It  was  simply  a  justifica- 
tion of  the  "  status  quo  ",  based  in  one  aspect  upon  the  Bible  and 
in  another  upon  motives  of  temporary  expediency,  without  an 
attempt  to  harmonize  Christian  love  ^°  and  cruel  penalties. '^ 
In  this  respect,  on  the  whole,  the  discussions  of  Thomas  Aquinas, 
not  to  mention  many  of  a  later  date,  had  been  of  a  somewhat 
higher  character. 

§  46.  The  Literature  of  the  1500  s  and  1600  s.  —  Powers  of 
thought  and  action  were  absorbed  by  the  theological  controversies. 
This  explains  why,  although  the  Carolina  made  some  practical 
improvement  in  legal  conditions,  one  cannot  speak  of  a  scientific 
administration  of  criminal  law  in  Germany  during  the  löOOs. 
The  work  achieved  during  this  time  consisted  simply  in  copying 
what  the  Italians  had  written  on  points  not  covered  by  the  Cart)- 
lina,  and  thus  in  supplementing  the  Carolina.^  The  German 
writers  did  not  interpret  the  Carolina  as  a  code ;  they  did  not 
develop  the  principles  of  the  Carolina  and  draw  logical  conclusions 
therefrom,  nor  did  they  expound  the  statute  i)riniarily  from  tlic 

»  r/.  J  and,  and  especially  the  accurate  proof  in  Gierke,  "Johannes 
Althusius  und  die  Entwicklung'  der  naturrechtlichen  Staatstheorien" 
(Breslau,  1880),  pp.  ü4  et  se(i.,  pp.  27;i,  27.") ;  Cierke,  "Das  deutsche  Genos- 
senschaftsrecht", Vol.  111   (18S1),  pp.  (525  cl  sc(j. 

'0  (J.  Luther's  "  Kirchenpostille,  Predifjten  ül)er  die  EvanRelien".  4,  n. 
"Trinitatis"  (Works,  edited  by  inoehmnnn,  üi,  p.  41):  "Der  Richter 
dienet  Gott." 

'IC/.  Calvini,  " Institutiones  Relig.  Christ.".  Lil».  IV.  <;.  20  n.  1: 
"...  Deo  jubente  ab  auctoritate  omnia  fieri  .  .  .  Divinis  numdatis 
xücisei." 

'Thus   Perneder   (di(-d    l.')40)   in  his  so-called   "  Uals-renchtsordnunfr 
})u])lished  often  after   liis  death    ("Von   Straf  und    I'eeii   aller   uikI   i.'d.;r 
Alalelizhandlunüfcii  in  kurzen    lierichl   fjenoninieu   .   .   .   ").   says   that    his 
Avork,   in   its  exi)lainin!,'  and   wideiiiiifi:  of  the  Carolina,   consists  of  the 
common  subsidiary  law  {Wackier,  p.  77). 

223 


§  40]     THE  RENASCENCE  AND  THE  REFORMATION      [Pakt  I,  Titlf:  III 

statute  itself.  Their  work  vvus  rather  in  tlie  nature  of  supple- 
mentary codification,  by  reference  to  the  Roman  law  and  the 
Italian  literature.  Reference  to  the  former,  in  the  absence  of 
knowledge  of  legal  history,  was  uncritical  and  often  absurd ; 
the  best  results  were  obtained  when  they  simply  copied  the 
Italian  jurists.  The  learning  of  the  latter  had  reached  its  zenith^ 
in  Aegidius  Bossius,^  and  above  all  in  the  lucid  and  learned  treatise 
of  Julius  Clarus.^  The  German  writers  were,  however,  less  te- 
dious when  (as  often)  they  adhered  to  the  superficial  and  common- 
place "  Praxis  rerum  criminalium  "  of  the  Hollander,  Damhouder ;  ^ 
direct  use  of  this  was  made  in  the  practice,  and  it  acquired  a  high 
reputation  in  Germany.  To  all  works  of  this  character  there  is 
more  or  less  applicable  the  statement  made  by  Wächter,  in  his 
masterly  treatise  on  the  literature  of  this  period  anent  that  espe- 
cially lifeless  and  depressing  book  by  Ludwig  Gilhausen,  "  Arbor 
judiciaria  criminalis  " ;  he  says :  "  The  articles  of  the  Carolina 
appear,  so  to  speak,  like  great  unmelted  dumplings  floating  in  a 
broth  concocted  from  the  Roman  Law  and  the  Italian  authorities."  ^ 

-  Along  with  these  mention  should  be  made  of  :  Hippolitus  de  Marsiliis 
(died  1529),  judge  in  many  cities  of  Lombardy,  professor  in  Bologna 
("Practica  causarum  criminalium")  ;  Bonifacius  de  Vüalinis,  "Tractatus 
super  malefleiis"  (the  characteristics  of  this  writer  are  too  unfavorably 
given  by  Allard,  pp.  401,  402  ;  he  is  not  so  entirely  devoid  of  original  ideas 
as  Allard  infers)  ;  Tiberius  Decianus  (died  1581),  "Tractatus  criminalis." 
This  last-mentioned  writer  however  does  not  merit  the  praise  bestowed 
upon  him  by  Wächter,  p.  68.  It  is  rather  the  fact  that  he  apparently 
clearly  marks  the  beginning  of  the  decline  of  the  Italian  learning.  It  is 
worthy  of  notice  that  in  Decianus  a  beginning  is  found  of  the  arrangement 
of  the  so-called  "general  part"  (now  common  to  continental  treatises  on 
criminal  law).  His  deductions,  however,  are  often  arbitrary  {e.g.  his 
discussion  concerning  the  "poena  extraordinaria",  IX,  36,  n.  3)  and  con- 
tradictory ;  and  as  a  zealous  Papist,  Decianus  was  too  much  under  the 
influence  of  the  Canon  Law,  e.g.  cherished  extreme  \'iews  in  regard  to  the 
prosecution  of  heretics. 

The  most  famous  of  the  later  Italian  jurists  was  Prosper  Farinacius 
(died  1618).  In  his  very  voluminous  writings  he  attempted  to  concen- 
trate all  that  had  been  written.  Remarkable  for  their  erudition,  but 
overwhelmed  in  a  wilderness  of  citations,  his  \\Titings  are  difficult  to  read, 
and  often  fail,  amidst  the  mass  of  qualifications  and  distinctions,  to  reveal 
the  principle  upon  which  he  proceeds  in  his  decision  of  disputed  questions ; 
they  are  laborious  and  dry  reading  ("0pp.  omnia",  9  vols,  fol.,  Frank- 
furt, 1616,  of  which  Vol.  II  contains  the  "Tractatus  de  testibus,"  Vols.  IV 
and  IX,  "Decisiones  Rotae"). 

^A  Senator  of  Milan,  born  1486,  died  1546.  "Tractatus  varii  qui 
omnem  fere  criminum  materiam  complectuntur"  (Venice,  1512). 

^  Born  1525  at  Alexandria,  died  1575  at  Saragossa,  as  adviser  of  Philip 
II.  " Sententiarum  receptarum  libri  V.  s.  practica  criminalis"  (1560 
first,  with  successive  Commentators  ;  notes  of  Bajardus  are  also  important). 

^  As  to  Damhouder,  cf.  especially  Stintzing,  "Geschichte",  I,  pp.  604 
et  seq.     The  earliest  well-known  edition  is  that  of  15.54. 

^  The  first  work  after  the  publication  of  the  Carolina  was  a  Latin 

224 


Chapter  VIII]     GERMA>^Y  IN  the   1500s  and   1600  s  [§  4G 

Yet  this  method  of  deahns  with  the  CaroHna  is  not  as  stran^re 
as  it  may  seem.  It  was  the  intention  of  its  authors  that  it  should 
be  supplemented,  not  directly  from  itself,  but  rather  from  the 
"  kaiserliche  beschriebene  Recht  ",  i.e.  from  the  Italian  le<;al 
practice,  and  from  the  local  law.  More  accurately  examined, 
the  misconception  of  that  purpose  is  found,  n(jt  in  the  literature 
next  following  the  Carolina  but  rather  in  that  later  literature 
which  treated  the  Carolina  as  a  genuine  code,  to  be  supplemented 
primarily  from  its  own  principles. 

The  Jurisconsults  and  the  Law  Faculties.  —  It  is  also  quite 
possible  that  the  really  learned  legal  practice,  which  in  that 
period  was  represented  not  so  much  by  the  treatises  and  text- 
books as  by  the  "  Consilia  "  (opinions  furnished  to  clients)," 
always  looked  immediately  for  guidance  to  Italian  legal  science; 
and  that  the  Carolina,  during  the  period  immediately  following 
its  first  publication,  merely  had  the  effect  of  confirming  opinions 
elsewhere  acquired.  This  is  seen  in  the  works  ccj.  of  Joh.  l-'ichard,** 
Recorder  of  Frankfort-on-Main,  and  the  most  famous  legal  adviser 
of  his  times, ^  and  also  in  the  works  of  ^Nlynsinger.'"  The  Carolina 
was  not  intended  for  the  really  learned  jurists.  This  explains 
why,  even  in  those  States  where  the  Carolina  had  been  specially 
promulgated,  the  jurists  of  high  reputation  continued  to  l)ase 
their  opinions,  not  on  the  Carolina,  but  on  the  Roman  and  Italian 

translation  of  the  same  by  Gobler,  154.3.  A  later  and  better  Latin  para- 
phrase is  that  by  Remus  ("Nemesis  Carolina;")  pulilished  in  l.")04.  Both 
these  were  again  edited  in  1837  by  Abegg.  Other  works  eonipleting  tlie 
system  of  the  Carolina  are:  Gobler,  "Der  Rechten  Spiegel"  (Frankfurt. 
15Ö0)  ;  Heinrich  Rauchdorn,  "Practica  und  Process  peinlicher  lials- 
gerichtsordnung"  (1564);  Joh.  Arn  v.  Dorneck,  "Practica  und  Process 
peinlicher  Gerichtshandlung"  (1576);  Abraham  Sawr,  "iStraflfbuch " 
(first  in  1577)  ;  Vigel,  "Constitutiones  Carolinse  publicorum  judiciorum  " 
(1583,  in  spite  of  the  praise  Iwstowed  upon  it  by  Wächter,  this  work  is  not 
much  superior  to  the  others  mentioned  above);  flarpprccht,  "Tractatus 
criminalis"  (first  in  1603).  Kilian  König' s  "Practica  und  Process  der 
Gerichtsleuffte,  nach  Sechsischem  gebrauch"  etc.  (first  in  1541)  contains 
little  concerning  criminal  law.  {( f.  also  Udlschncr,  p.  121,  note;  Geib,  I, 
pp.  287  et  seq.;    Slintzing,  "Geschichte",  1.  pp.  6.30  el  seg.) 

^  In  the  beginning,  they  would  hav(>  little  to  do  with  the  seldom  lu- 
crative criminal  cases;  moreover  the  jurists  were  also  often  clerics,  and 
therefore  could  refuse  to  take  part  in  the  "Blutgericht"  ("Blood  court  ". 
i.e.  criminal  court).     Cf.  Stinlzing,  I,  p.  608. 

*  Concerning  Fichard,  rf.  Stinlzing,  I.  pp.  586  (7  scg. 

^  Cf.  "Consilia"  (1.590  fol.)  Cons.  61.  Here,  in  dealing  with  a  case 
coming  b(«f()re  the  court  in  l.')40,  the  provisions  of  tiie  Camlina  concern- 
ing hoMiicide  resulting  from  chance  medley  were  not  observed. 

"*  Mynsingcr,  "Observ.",  Ill,  9,  in  discussing  tlie  punishment  of  attempt 
makes  no  mention  of  the  Carolina.  (As  to  Alynsinger,  born  1511.  died 
1588,  cf.  Slintzing,  I,  pp.  485  el  seg.) 

22Ö 


§  47]      THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

autliorities.  Indeed,  they  invoked  the  CaroHna  for  the  most 
part  only  upon  an  appeal  reviewing  the  proceedings  in  a  lower 
court,  to  determine  whether  or  not  a  lower  court  had  erred.^^ 
Consequently  the  scientific  and  practical  activities  and  abilities 
of  the  higher  courts,  and  especially  of  the  law  faculties  (who  were 
constantly  acquiring  more  and  more  of  a  dominating  influence  in 
])ractice),  are  not  to  be  judged  })y  the  above-mentioned  literature. 
The  practical  business  of  giving  advice  and  rendering  opinions  was 
extraordinarily  remunerative  and  held  in  much  honor ;  it  made 
such  demands  upon  the  time  of  jurists  of  reputation  that  they  did 
not  aspire  to  literary  activity,  but  left  this  to  those  of  more  subor- 
dinate and  mediocre  abilities.^^  The  "  Consilia  "  of  Fichard  and 
of  the  Tübingen  Facidty  give  evidence  of  a  far  superior  grade  of 
legal  practice  than  one  would  surmise  from  the  scientifically 
valueless  literature.  They  reveal  that  moral  earnestness  and 
courage  which  defended  the  oi)pressed  against  the  despotism  of 
princes,^^  and  brought  the  law  faculties  gradually  to  that  high 
position  which  they  maintained  during  the  ensuing  three  cen- 
turies.^^ 

§  47.  Domination  of  Theology.  Witchcraft.  Blasphemy.  — 
There  were  two  enemies  against  whom  legal  science  was  obliged 
to  defend  itself.  These  were  the  bigoted  theology  and  the  despot- 
ism of  the  princes.  It  is  notable  that  the  assistance  of  the  power 
of  the  princes  later  served  to  overcome  theology. 

The  domination  of  theology  manifested  itself  in  many  partic- 
ulars. The  most  important  was  the  atrocities  of  the  witchcraft 
trials,  by  which  (far  more  than  by  war  or  plague)  many  regions 
during  the  1500  s  and  1600  s  were  periodically  decimated.^  At 
beginning,  to  be  sure,   the  Church  had   vigorously  condemned 

"  Cf.  Seeger,  "Die  strafrechtlichen  Consilia  Tubingensia  von  der 
Gründung  der  Universität  bis  zum  Jahre  1600"  (Tübingen,  1877),  p.  33. 

'-  Ibid.,  pp.  28  and  31  et  seq. 

13  Cf.  the  "Consilium  der  Sichardt'sehen  Sammlung",  cited  by  Seeger. 

"  In  general,  since  the  middle  of  the  1500  s,  the  activity  of  the  learned 
jurists  in  criminal  causes  became  more  extensive  {cf.  Stölzel,  "Die  Ent- 
wicklung des  gelehrten  Richterthums  in  deutsehen  Territorien",  I  (1872). 
pp.  349  cl  seq.,  and  Stintzing,  "Geschichte",  I,  p.  635).  After  the  middle 
of  the  1500  s,  the  criminal  law  was  treated  as  a  distinct  and  separate  sub- 
ject, e.g.  in  Tübingen,  Jena,  Rostock,  Ingolstadt  {cf.  Stintzing,  I,  p.  635). 

1  Cf.  especially  Soldan,  "Geschichte  der  Hexenproeesse",  recently  re- 
vised by  Heppe  (2  vols.,  1880),  and  Von  Wächter,  "Beiträge  zur  deutschen 
Geschichte",  pp.  81  et  seq.,  pp.  277  et  seq.:  Stintzing,  "Geschichte".  I,  pp. 
641  et  seq.  In  the  bishopric  of  Bamberg,  e.g.,  with  a  population  of  100,000, 
there  were  executed,  during  the  years  1627-1630,  285  persons.  A  witch- 
craft judge  in  Fulda  in  18  j'^ears  brought  his  number  of  death  sentences  up 
to  a  total  of  700. 

226 


Chapter  VIII]     GERMANY  IN  THE   1500  s  and   IGOOs  [§47 

belief  in  the  possibility  of  an  alliance  with  the  Devil.-  But  later 
it  recognized  it  officially.  There  was  no  more  effect i\'e  way  to 
arouse  the  people  to  fanaticism  against  heretics  tiiaii  to  make  it 
clear  to  them  that  the  heretics  were  in  league  with  the  Devil.'' 
Thus,  in  Arras,  in  1459,  a  large  number  of  the  Wait  lenses  were 
burned  to  death,  on  the  ground  of  an  alleged  alliance  with  the 
Devil.  In  1484,  Innocent  VIII  ordered  the  judges  commis- 
sioned to  sit  in  heresy  cases  for  Germany,  Heinrich  Institor 
(Krämer)  and  Jacob  Sprenger  (both  of  them  professors  of 
theology),  to  prosecute  sorcerers  also  with  the  utmost  zeal. 
With  the  approval  of  the  Faculty  of  Theology  of  Cologne 
there  was  composed  for  these  two  heresy  judges  the  so-called 
"  Malleus  maleficarum  "  ("  Hammer  of  Witches  "),  a  formal 
treatise  on  the  belief  in  witches  and  their  inquisition.  The 
inquisition  of  witches,  especially  with  the  use  of  torture, 
now  acquired  truly  revolting  features. 

The  Bambergensis  ^  and  the  Carolina  '  had  proceeded  with 
some  moderation,  since  they  made  sorcery  a  crime  punishable 
with  death  at  the  stake,  only  when  it  was  injurious  to  others.  In 
other  cases  the  penalties  were  left  to  judicial  discretion.  En- 
lightened men,  such  as  Fichard,^  denounced  the  charges  of  noc- 
turnal dances  and  intercourse  with  the  Devil  as  products  of  the 
imagination.  But  judicial  practice,  inspired  by  theology  and  at 
the  same  time  fearing  it,'  soon  began  to  throw  aside  the  limitations 
imposed  by  the  Carolina.^  Invoking  the  same  principle  as  in 
other  matters,  it  declared  the  Mosaic  law  to  be  a  connnand  un- 
equivocally binding  upon  the  authorities. '■'  And  so,  with  all 
seriousness,  the  judicial  trials  investigated  the  various  kinds  of 
alliances  with  the  Devil.'"     Upon  the  whole  the  Protestant  theol- 

2  Charles  the  Great  in  785  had  ratified  a  decree  prepared  by  tlie  Synod 
of  Paderborn,  bv  which  expression  of  beUef  in  witchcraft  was  forbidden. 
CJ.  Snldan-IIeppe,  I,  p.   128. 

3  Voit  Wächter,  p.  89. 
''  Bambergensis,  I'M. 
s  CaroHna,  109. 

^  "Teutsche  Rathschliige",  p.  112. 

^  Leyser,  as  is  well-known,  wonid  not  wijlingrly  lake  issue  witli  tlie 
theologians.  He  twice  changed  his  ojjinion  in  regard  to  incense,  each 
time  to  bring  himself  into  harmony  witii  tiie  tliei^logjans  of  the  couiUry 
in  which  he  lectured.      (Cf.  Sj).  5.S(),  n.  1.) 

*  According  to  the  "Constitutiones  Saxonica«'"  of  l.'>72.  IV,  2,  death 
by  burning  was  the  penalty  even  if  no  harm  had  l)een  wrought.  Sooth- 
saying and  magic  also  entailed  the  death  jjenalty  il)y  the  sword). 

'  Cf.  Exodus,  xxii,  IS:    "Tliou  shalt  not  sutTer  a  witch  to  live."' 

'"  Cf.  e.g.  Cnrpzov,  "Practica  nova  Imperialis  Sa.xouica  rerum  crimina- 
lium"  (1635),  qu.  49  u.  23  ct  seq. 

227 


§  47]      THE  RENASCENCE  AND  THE  REFORMATION      [Paut  I,  TiTLK   III 

ogy,"  constantly  more  and  more  bigoted,  was  just  as  active  as 
tlie  Catholic  theology  in  its  incitement  of  the  prosecution  of 
witches.  There  may  often  be  found  in  the  libraries  peacefully 
bound  together  in  the  same  volume  the  products  of  this  insane 
superstition  of  both  Catholic  and  Protestant  theologians,  who 
in  other  matters  were  contending  furiously. 

Another  evidence  of  this  domination  of  theology  is  to  be  found 
in  the  fact  that  (by  virtue  of  the  above-mentioned  opinion  about 
the  direct  obligation  of  many  expressions  in  the  Bible)  '-  the  right 
of  the  magistrates  and  rulers  to  remit  death  sentences  was  success- 
fully contested. ^^  As  against  "  Lex  divina  ",  that  power  of  the 
"  Princeps  ",  to  which  the  Italian  writers  had  such  frequent  re- 
course, did  not  appear  to  obtain.  In  doubtful  cases  of  this  char- 
acter the  rulers  even  referred  the  matter  to  the  clergy  for  their 
opinion  ;   this  was  done  even  until  the  1700  s.^^ 

Still  another  example  of  the  zeal  of  the  bigoted  clergy  is  seen  in 
the  severe  punishment  ^'^  of  blasphemy;  ^^  so,  too,  in  the  punish- 
ment of  unchastity,  in  many  of  the  Protestant  countries,^"  and 
especially  in  Electoral  Saxony,  where  the  power  of  orthodoxy  was 
supreme.  There  we  find  death  by  the  sword  prescribed  for 
adultery,^^  and  unless  special  reasons  for  mitigation  (and  in  prac- 

"  However,  in  some  of  the  Protestant  countries  the  rulers  took  a 
rational  attitude  (e.g.  Mecklenburg,  Würtemberg). 

12  In  one  of  the  opinions  rendered  by  the  Faculty  of  Tübingen  in  1695, 
the  view  was  sustained  that  the  civil  authority  could  straightway  inflict 
a  penalty  valid  under  the  Mosaic  law  (Harpprecht,  "  Consil.",  .53,  n.  17,  18.) 

"  Cf.  concerning  reference  of  cases  to  the  theologians  for  their  opinions, 
especially  in  reference  to  mitigation  of  punishment,  Leyser,  "Sp."  597, 
n.  28,  30.  Leyser  was  of  the  opinion  that  in  homicide  there  could  be  no 
period  of  limitation  against  the  punishment,  and  no  mitigation  of  the 
punishment  {e.g.  because  of  the  youth  of  the  offender),  since  the  divine 
command  was  expressed  without  qualification.  A  Brandenburg  ease  was 
referred  to  theologians  for  their  opinion,  whether  the  death  penalty  could 
be  remitted  in  the  ease  of  persons  seemingly  not  responsible. 

"According  to  Frölich  v.  Frölichburg's  "Commentar  zur  P.G.O." 
(1710),  II,  211,  the  clergy  in  deciding  the  question  whether  a  child  was  a 
human  being  or  a  monster  considered  whether  or  not  it  could  have  been: 
baptized. 

1^  In  Saxony  the  more  serious  cases  of  sacrilege  were  punished  by  break- 
ing on  the  wheel.     Carpzov,  IT,  qu.  89  n.  18  el  seq. 

1^  The  generally  lenient  Tübingen  Faculty  {Harpprecht,  "Consilia",  81) 
in  1680,  in  a  not  extreme  case,  imposed  the  death  penalty,  and  in  1706  in 
a  more  serious  case  imposed  the  death  penalty  in  an  aggravated  form. 
The  bigotted  Brunnemnnn  ("Traetatus  de  inquisitionis  processu",  9,  n. 
1)  reports  a  ease  in  which  the  Frankfort  Faculty  had  imposed  a  sentence 
of  cutting  out  the  tongue,  and  adds  "nee  ejus  me  poenitet." 

1'  In  1681,  the  Faculty  of  Tübingen  sentenced  to  death  with  the  sword 
a  boj^  of  seventeen  apparently  phj'-sically  and  morally  depraved,  for 
sodomy  with  animals. 

18  The  " Kursächsiche  Constitution"  of  1543  provided  death  by  the 

228 


Chapter  VIII]     GERMANY  IN  THE   1500  S  AND   1600  s  [§48 

tice  these  were  apparently  quite  liberal)  could  be  invoked,  this 
penalty  was  for  a  long  time  relentlessly  carried  out.^^ 

The  distinction  between  the  provinces  of  the  temporal  and 
spiritual  judges  finally  became  so  confused,  that  in  Protestant 
countries  where  the  clergy  were  more  or  less  given  "  de  facto  " 
recognition  as  State  officials,  the  Courts  pronounced  the  regular 
punishments  of  the  Church.-" 

§  48.  Despotism  of  the  Rulers.  —  The  Protestant  theology 
also  tended  to  strengthen  the  principle  of  the  omnipotence  of  the 
sovereign,  by  casting  upon  it  the  lustre  of  divine  authority.  This 
power  of  the  "  Princeps  ",  by  application  of  the  Roman  maxim 
"  Princeps  legibus  solutus  ",  ^  had  already  been  given  a  very 
questionable  extension  from  the  Italian  jurists.  The  Reformers 
made  direct  use  of  the  secular  authorities,  especially  in  the  States 
of  the  empire,  for  the  spreading  of  their  doctrines.  Consequently 
they  often  preached  absolute  submission  to  established  authority,- 
even  to  a  bad  ruler.  The  established  authority  was  to  them  the 
direct  representative  of  God.  The  maxim  of  Theodor  Beza  :  ^  "  Rei 
publicie  quidem  interest,  non  modo  ne  quis  re  sua  .  .  .  sed 
etiam  se  ipso  .  .  .  male  utatur  ",  laid  the  foundation  for  a 
power  of  the  State  in  matters  pertaining  to  police  regulation 
that  was  absolutely  despotic  in  character. 

This  absolute  power  was  even  considered  a  sufficient  basis  for 
the  enactment  of  higher  penalties  than  would  otherwise  have 
been  justifiable,  on  the  ground  that  the  offender  had  transgressed 
a  supreme  command  of  the  ruler  and  repudiated  the  ruler's  author- 
ity.*    For  example,  in  contravention  of  the  common  law,  it  was 

sword  for  adultery  of  the  husband  as  well  as  the  wife,  and  this  punishment 
was  to  be  inflicted  upon  the  third  party  even  in  a  case  where  there  was 
forgiveness  on  the  part  of  the  injured  spouse.  Carpzov,  II,  qu.  54  n.  32 
et  seq. 

'»  The  influence  of  the  clergy  also  led  directly  to  judgments  containing 
a  false  moralizing  element.  In  Zofingen  (Switzerland)  in  ICA'.i,  pursuant 
to  a  decision  obtained  after  reference  to  the  ch^rgy,  a  man  was  beheaded 
because  he  had  not  saved  his  wife  in  an  aceidi'Ut.  Oacnbriiggcu,  "Stu- 
dien", pp.  2,  3. 

20  Thus,  by  a  judgment  given  in  Carpzov,  II,  qu.  92  n.  37,  a  usurer  was 
sentenced  to  death,  not  only  without  honorable  burial,  but  also  without 
receiving  the  Sacrament. 

1  C/.  Theod.  Rcinkimjk,  "De  regimino  sirculari"  (1613  ed.  1)  1.  2,  c. 
12,  n.  8  cl  seq.,  who,  however,  in  accordance  witli  the  Middle  Ages  theory 
would  hold  the  "princeps"  bound  bv  "leg(>s  divina'"  and  "  luiturales." 

2  Cf.  Calvini,  "  Institutiones  Helig.  Christ.",  IV,  22  c.  2,  3,  27. 
^  "De  hipreticis",  p.  23  (cd.  of  X'yTvi). 

•«  Cf.  the  "kursächsisches  Mandat"  of  l.")S4  concerning  the  punishment 
of  poaching,  "von  Niemand  uns  trotzen  lassen." 

229 


§  49]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

deemed  justifiable  to  punish  with  lieavy  penalties  the  stealing  of 
wild  deer,""  since  this  was  prejudicial  to  the  exercise  by  the  prince 
of  his  noble  passion  for  the  chase.  Where  the  property  or  any 
other  special  interest  of  the  ruler  seemed  jeopardized,  it  was  con- 
sidered justifiable  to  ignore  all  ordinary  limits  in  the  fixing  of 
penalties.^ 

§  49.  The  Crime  of  "  Lese  Majeste."  —  The  crime  of  "lese  maj- 
este  ",  which  was  gradually  made  to  cover  attacks  upon  the 
States  and  their  rulers,  possessed  often,  as  formerly  in  the  time 
of  the  Roman  Csesars,  a  terrible  significance.  It  w^as  used  even 
by  the  Protestant  theologians  and  their  zealots  as  a  means  to 
destroy  their  opponents  and  to  prosecute  heresy.  As  is  well 
known,  Craco,  the  Saxon  privy  councillor,  sufi'ered  martrydom 
with  slow  torture  at  the  command  of  the  Electoral  Prince  August, 
because  he  w^as  accused  of  a  conspiracy  to  introduce  Calvinism 
into  Electoral  Saxony.^  As  in  the  time  of  the  Roman  emperors, 
a  political  minister's  failure,  actual  or  apparent,  in  acts  of  State, 
was  attributed  to  disloyalty ;  and  the  prince's  prior  sanction  signi- 
fied little  if  after  the  event  his  altered  opinion  condemned  it. 
jNIoreover,  no  distinction  was  made  between  the  private  interests 

5  In  Wiirtemberg,  towards  the  end  of  the  1500  s,  the  punishment  of 
putting  out  of  the  eyes  was  inflicted  for  steaUng  deer.  Emperor  Fer- 
dinand I  interfered  with  this  custom  {cf.  Kress,  159,  §  5  n.  3).  Cf.  as 
to  the  punishment  of  poaching  during  tliis  period,  also  Roth,  "Geschichte 
des  Forst- und  Jagdwesens  in  Deutschland",  pp.  468  et  seq.  In  TjtoI,  at 
the  beginning  of  the  1700  s,  the  extreme  penaltj'^  was  a  sentence  to  the 
galleys:    Frolich  v.  Frölichburg,  "Commentar  zur  P.G.O."  II,  4,  6. 

«A  royal  decree  ("constitution")  of  Braunschweig-Lünebiu-g  of  the 
3d  of  January,  1593,  against  adultery  and  harlotry,  made  the  latter 
punishable  with  the  sword  when  committed  in  churches,  cloisters,  or  "auf 
unseren  Schlössern"  {Kress,  "Commentar",  Supplement,  p.  851).  An 
Edict  of  Hannover  of  Sept.  12th,  1681,  imposed  death  by  hanging  for 
theft  of  the  royal  silver  plate,  without  distinction  as  to  how  much  or  how 
little  was  stolen  {Kress,  p.  851).  Cf.  also  in  the  1700  s,.the  Royal  Prussian 
Edict  of  Jan.  4,  1736,  against  steaUng  wdthin  the  royal  palace  ("Corpus 
Constitutionum  Marchicarum",  II,  Abth.  Ill,  X.  75).  As  an  example 
of  legislation  of  this  character  is  frequently  cited  a  Prussian  Edict  of  1739  . 
"If  an  advocate  or  attorney  or  any  other  such  person  shall  have  the  pre- 
sumption to  cause  a  direct  petition  in  a  legal  proceeding  or  plea  for  a 
pardon  to  be  presented  to  his  Royal  ^Majesty  by  soldiers,  or  if  any  other 
of  the  people  be  prevailed  upon  by  him  to  present  to  his  Royal  Majesty 
a  direct  petition  in  a  settled  and  decided  case,  then  shall  Ms  Royal  ^lajesty 
such  person  .  .  .  cause  to  be  hung  and  cause  a  dog  to  be  hung  with 
him."  Cf.  also.  Berner,  "Lehrbuch  des  deutsehen  Strafrechts",  §  54, 
and  concerning  this  Brandenburg-Prussian  legislation,  cf.  the  exposition 
(somewhat  too  lenient  however)  of  Abegg  in  Hitzig' s  "Zeitschrift  für 
Criminalrechtspflege  in  den  Preussischen  Staaten"  (1836,  Supplement, 
pp.  129  et  seq). 

•  Cf.  Kluckhohn,  "Der  Sturz  der  Krvtocla\dnisten  in  Kursachsen" 
(1574)  in  Von  Sybel's  "Historischer  Zeitschrift",  Vol.  18  (1867),  pp.  77- 
127. 

230 


Chapter  VIII]      GERMAXY    IX   THE    1500  S    AND    IGOJs  (§49 

of  the  princes  and  the  interests  of  the  country.'-  Thus,  in  tiie 
outrageous  proceedings  for  treason  against  Crell,  the  Cliancellor 
of  Electoral  Saxony,  who  after  a  ten-years'  imprisonment  was  in 
1601  brought  to  the  scaffold,  the  charges  were  that  this  once 
powerful  counselor  of  the  electoral  prince  had  asserted  for  the 
prince  prerogatives  which  he  did  not  possess,  had  aroused  dis- 
cord in  the  royal  court,  and  had  incited  the  prince  to  a  hatred  of 
his  consort.''  In  the  times  from  the  1700  s  on,  when  ministers 
were  all-powerful  (and  sufficient  mischief  may  indeed  be  laid  at 
their  doors),  their  office  was  for  these  reasons  not  without  its 
dangers.'*  Even  to  hold  a  high  position  might  later  become  high 
treason  on  the  part  of  the  overthrown  favorite.  Leyser  ''  even 
discusses  in  all  seriousness  whether  "  ^Nlinistrissimatus  "  (i.e.  the 
preferred  position  of  an  all-powerful  minister)  does  not  in  itself 
constitute  a  crime. 

Other  Illustrations  of  the  Despotism  of  the  Rulers.  —  Moreover, 
when  they  were  not  concerned  in  Furthering  some  base  interest, 
the  rulers  began  to  gratify  their  individual  whims  and  caprices 
in  defining  oft'enses  and  in  fixing  the  penalties.  "  Superiori  nihil 
impossibile  "  is  the  statement  of  Brunnemann,  when  advising  the 
utmost  extremity  in  threatening  punishments.  The  "  Constitu- 
tiones  Saxonicse  "  (1572)  ^  no  longer  regarded  the  limitation  im- 
posed by  the  Carolina  upon  the  introduction  of  new  crimes  into 
the  law.  Blumlacher,  in  the  preface  to  his  commentary  upon 
the  Carolina,  makes  an  express  statement  in  regard  to  this : 
"  Hodie  cjuilibet  Princeps  in  territorio  dicitur  esse  Imperator."  ' 
In  1710,  by  an  ordinance  of  the  Elector  of  Hannover,  mistakes 
of  masons  and  carpenters  whereby  danger  of  fire  could  arise 
were  punishable  by  imprisonment  at  hard  labor  in  the  galleys 
for  life.  By  another  of  these  ordinances  in  1726  a  negligent 
bankruptcy  was  punishable  with  the  galleys,  and  a  fraudulent 
bankruptcy  with  life  im])risonment.^     However,  judicial  practice 

2  Cf.  Leyser,  "Sp.",  575,  n.  2,  concerning  the  trial  of  the  unfortunate 
Baron  Görtz.  executed  in  Sweden. 

^  Leyser,  "Speculum",  571  n.  55,  56. 

''  Ibid.,  575,  n.  5,  speaks  of  the  peculiar  practice  of  questioninf;  of 
the  Faculties  concerning  the  punishment  of  ministers. 

5  Ibid.,  570. 

*  For  example,  the  old  Saxon  law  in  respect  to  rape  was  restored,  and 
theft  was  punished  hy  new  rules.     Cf.  IV,  '.M,  '.Mi. 

'  This  unlimited  power  of  legislation  was  l)ased  upon  the  provisions  of 
the  Peace  of  Westphalia.  Cf.  J.  U.  A.  §  171,  Verb.  "Demjenigen  nach- 
gelebt werden  soll,  was"  etc. 

*  The  edicts  against  the  gypsies  are  also  notable.     They  were  by  im- 

231 


§  50]      THE  RENASCENCE  AND  THE  REFORMATION       [Part  I,  TiTLE  III 

soon  began  a  successful  opposition  to  ordinances  of  this  char- 
acter. 

The  power  of  the  rulers  manifested  itself  not  only  in  autocratic 
legislation,  but  also  by  interfering  in  the  trial  and  decision  of 
individual  cases.  Already  in  the  Italian  jurists  ^  was  to  be  found 
the  principle  that  the  sovereign  "  ex  plenitudine  potestatis  "  not 
only  can  remit  penalties  but  also  can  inflict  penalties  and  correct 
errors  in  judicial  decisions,  and  that  in  so  doing  he  is  not  bound 
by  the  ordinary  rules  of  procedure.^"  Thus,  while  increasing 
limitations  were  being  placed  upon  the  right  of  the  judges  and  the 
lords  of  inferior  courts  to  remit  punishments,  and  the  modern 
pardoning  power  of  the  rulers  was  being  developed,  there  often 
came  about  in  the  several  States  an  expansion  of  the  power  of 
the  rulers  in  the  matter  of  increasing  punishments.  In  Branden- 
burg, and  later  in  the  Kingdom  of  Prussia,  the  ruler  became  the 
regular  source  to  which  appeal  was  taken  for  the  review  of  criminal 
cases  of  a  more  serious  character,  and  to  which  all  the  appropriate 
proceedings  had  always  to  be  submitted.^^  It  is  easy  to  see  how 
this  often  led  to  perverse,  albeit  well  meant,  decisions.^-  The 
judges,  moreover,  in  accordance  with  the  Roman  traditions,  gave 
broad  support  to  the  right  of  the  "  Princeps  "  to  proceed  of  his 
own  motion  directly  against  those  who  were  enemies  of  the  country 
and  therefore  also  against  enemies  of  its  rulers,  —  just  as  had 
been  done  by  the  possessor  of  the  Roman  sovereign  power,  against 
those  guilty  of  "  perduellio."  ^^ 

§  50.  Abuses  of  the  Criminal  Law.  —  It  is  therefore  not  sur- 
prising that,  in  certain  cases,  the  old  idea  of  regarding  the  right 

perial  law  declared  to  be  without  rights  ("Polizeiord.  1577",  tit.  28). 
According  to  an  Edict  of  Frederick  William  I  of  Prussia,  Oct.  5,  1725, 
gypsies  who  were  found  in  the  country  and  were  over  eighteen  years  of 
age  were  mercilessly  punished  on  the  gaUows. 

"  Cf.  e.g.  Bossius,  tit.  "de  homicidiis",  n.  97  ct  seq.  The  maxim  how- 
ever is  older.  Kress,  "Comment.",  Art.  99,  §  3,  infers  that  where  a 
judge  has  passed  too  lenient  a  sentence,  he  can  apply  to  the  "princeps" 
to  have  it  corrected. 

^"  Often  during  the  1700  s  the  judgments  of  the  faculties  were  drawn 
in  form  of  ad\aces  to  the  princes,  especially  if  the  statutory  law  seemed  to 
the  "Collegium"  to  be  too  severe. 

"  Cf.  Hälschner,  "Geschichte",  p.  141. 

12  CjT.  Fichord,  "Teutsche  Rathschläge",  cons.  70,  n.  11  et  seq.  "In 
eonsistorio  principis  non  requiritur  ordo  processus";  a  maxim  which 
however  here  referred  only  to  the  emperor. 

'^  Reinkingk,  "De  regimine  sfec",  1,  2,  c.  12,  n.  35;  Pufendorf,  "De 
jure  nat.",  VIII,  c.  3,  §  33:  "aliquando  absque  ambagibus  processus  ab 
executione  fieri  initium  queat"  ( !).  Cf.  also  Lcyser,  "Speculum",  641 
n.  12,  646  n.  7,  who  relies  upon  L.  16,  §  10,  D.  "de  poenis",  and  in  extreme 
cases  approved  of  putting  to  death  with  poison  ( !) 

232 


Chapter  VIII]      GERMANY   IN   THE    1500  S   AND    1600  S  [§51 

of  administering  justice  as  essentially  a  property  right  led  to  some 
infamous  compromises  for  the  suppression  of  justice.  Thus,  when 
von  Hoym/  the  President  of  the  Exchequer  of  Electoral  Saxony, 
who  had  been  guilty  of  numerous  briberies,  embezzlements, 
instigation  of  money  frauds  and  extraordinary  extortions  against 
his  tenants,  was  prosecuted,  with  much  display  in  109.3,  he  got 
oft"  with  paying  to  the  Elector  the  sum  of  200,000  thaler ;  the 
alleged  offenses  were  as  good  as  proven ;  an  apj)lication  of  torture 
had  procured  from  von  Hoym  a  confession ;  but  the  poor  tenants 
never  got  any  redress  and  he  was  reinstated  in  all  his  old  digni- 
ties.2 

Carpzov  ^  breaks  out  in  complaints  against  the  evil  judges  of 
the  lower  courts  (and  of  the  higher  courts  as  well)  who  make  a 
business  out  of  inflicting  fines  and  are  not  ashamed  to  say  in  public  : 
"  Well,  God  be  praised,  the  ledger  makes  an  excellent  showing  this 
year  in  offenses  and  fines."  As  late  as  the  end  of  the  1700  s  there 
was  a  small  principality  (which  fortunately  has  long  since  been 
mediatized),  in  which  a  court  commissioner  travelled  about  for 
the  purpose  of  extorting  high  money  fines  by  instituting  absurd 
prosecutions  for  adultery,''  so  that  the  homes  and  estates  of  many 
people  were  sold  at  auction  to  the  court  Jews.  Ultimately  this 
vnibelievably  scandalous  practice  was  energetically  suppressed 
by  the  Supreme  Court  of  the  Empire.'^ 

§51.  Scantiness  of  Legislation.  Evasion  of  the  Carolina; 
Berlich  and  Carpzov.  —  However,  along  with  this  insincere  and 
<lespotic  administration  of  the  law,^  here  and  there  the  opinions 

1  Cf.  Helbig,  "Die  kursächsische  Kammerpräsident  von  Hoym",  in  the 
periodical  "Im  neuen  lleich"  (1873),  II,  pp.  473  el  seq. 

2  No  form  of  underhand  dealing,  and  no  violation  of  law  or  contract, 
were  disdained  in  getting  their  hands  on  anyone  whose  persecution  was 
desired  l)y  the  lord  or  his  favorites.  Leijser,  "Speeuluni",  'ü2,  n.  0, 
speaking  of  a  trick  of  this  kind  done  in  the  vicinity  of  Ilainl)urg  l()ü4, 
calls  it  a  "dolus  l)onus,"  and  remarks  "nee  improbe  actum." 

^  "Practica",  III,  qu.  IKi,  n.  13  el  seq. 

'  Thus,  a  man  seventy-two  years  of  age  was  fined  1200  guilder  on  ac- 
count of  two  acts  of  adultery  alleged  to  have  been  committed  many  years 
previously. 

5  "Bibliothek  für  poinl.  Rechtswissenschaft"  (1707,  Vol.  I),  p.  2.  pp. 
278  el  seq.  The  Rescript  of  tlie  Imiierial  Supreme  Court  (,'"  li^'ifl'^'^^^'"- 
mergerieht")  was  dated  May  17th,  1793. 

'  Sojnetimes  offenders  were  liung  merely  that  tlie  petty  rul(>r  might 
show  that  he  possessed  the  privilege  of  "Blood  l)aii."  (\f.  Olilvhop, 
"Observ.  crim."  V,  19:  "Vae  tibi  (pii  lioc  modo  jura  jurisdictionemque 
tuam  tueri  desideres  et  actum  peri  inii>erii."  (hnelin  ("(irundsiitze  über 
Verbrechen  und  Strafen",  1785,  p.  292)  relates  that  it  was  reported  to  Inm 
that  a  nobleman  in  opi)osition  to  the  opinion  of  a  law  faculty  caused  a 
prisoner  to  bo  hanged  in  order  to  demonstrate  his  possession  of  the  "Blood 
ban." 

233 


§  51]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Titmo  III 

of  the  Courts  and  law  faculties  were  gradually  acquiring  an  influ- 
ence, in  mitigating  the  cruel  piuiishments  ^  and  in  making  criminal 
justice  serviceable  to  the  well-being  of  the  public  at  hirge.''     As 

2  In  the  1600  s  the  administration  of  criminal  law,  reflecting?  the  condi- 
tions of  the  times  alternately  varied  V)etween  barbarous  severity  and  an 
almost  inconceivable  leniency  and  a  tacit  immunity  to  the  most  notorious 
criminals  when  they  later  ceased  their  criminal  activities.  In  this  respect, 
see  the  information  gathered  by  Niemeycr,  from  the  acts  of  the  Han- 
noverian  court  of  Meinersen,  "Ueber  Criminal  verbrechen,  peird  Strafe 
und  deren  Vollziehung  bes.  aus  alter  Zeit"  (Lüneburg,  lS24j,  pp.  (31,  02, 
104.  At  the  end  of  the  1500  s,  justice  was  dealt  out,  in  Meinersen  and 
vicinity,  with  severity  in  accordance  with  the  Carolina.  During  the  period 
between  1618  and  1660  grave  crimes  such  as  theft  and  even  murder  were 
punished  only  ^\^th  banishment,  church  penance,  and  money  fines.  On. 
the  other  hand,  little  scruple  was  often  shown  in  the  sentence  and  execu- 
tion of  death  penalties ;  e.g.,  the  officials  in  Meinersen  considered  it  re- 
markable that  a  messenger  who  was  to  bring  three  death  sentences  from 
the  Helmstädter  Faculty  was  obliged  to  wait  two  days  and  brought  back 
only  two  death  sentences.  Often  the  messenger  on  the  same  day  on 
which  he  transmitted  the  record  would  return  with  the  death  sentence ! 
{Niemeycr,  p.  116.) 

Concerning  the  revolting  cruelty  (occasionally  shown  in  Hannover) 
inflicting  death  by  flies,  wasps,  ants  —  of.  Freudentheil,  "Beilageheft  zum 
N.  Archiv  des  Criminalreehts",  1838.  On  the  other  hand,  humorous 
features  were  not  entirely  lacking.  Occasionally,  for  the  sake  of  a  better 
admonition  and  education  in  the  case  of  the  execution  of  punishments, 
certain  of  the  spectators  were  also,  \\ath  the  general  approval  of  the 
public,  cudgeled.  Thus  the  officials  in  Meinersen,  where  a  son  had  mur- 
dered his  father,  caused  a  number  of  grown  up  sons  of  peasants,  after  view- 
ing the  execution  of  the  offender,  to  be  themselves  cudgeled.  Niemeycr, 
p.  121. 

^  In  the  mitigation  of  punishments  there  long  prevailed  the  influence  of 
the  ancient  legal  conceptions.  E.g.,  even  in  the  1600  s  the  request  of  a 
"puella"  to  marry  the  offender  was  recognized  as  a  ground  for  not  carry- 
ing out  a  death  sentence  and  for  commending  the  offender  to  the  pardon 
of  the  lord  of  the  land.  In  this  wa3',  especially  in  cases  of  adultery,  death 
sentences  were  often  avoided.  Cf.  Carpzov,  II,  qu.  88,  n.  25.  Many 
later  WTiters,  failing  to  recognize  the  original  meaning  of  the  term,  limited 
this  rule  to  the  request  of  a  "meretrix"  ( !)  because  she  would  thereby  be 
enabled  to  live  an  honorable  life.  Cf.  contra,  Carpzov,  II,  qu.  88,  n.  25. 
Mitigation  might  also  be  given  for  special  ability  of  the  offender  in  his 
art,  trade,  or  profession  {cf.  Carpzov,  1.  c.  n.  62);  the  "Codex  Max. 
Bavaricus"  felt  it  necessary  to  specially  repeal  this  as  a  mitigating  cir- 
cumstance. The  intercession  of  others  was  also  regarded  as  a  ground  for 
the  interposition  of  the  pardon  of  the  ruler.  Fichard,  "Teutsehe  Rath- 
sehläge",  cons.  121,  because  of  the  intercession  of  the  entire  community 
and  because  the  offender  was  one  "Ansehnlicher  von  Adel"  (having  the 
appearance  of  nobility),  changed  to  banishment  and  damages  a  sentence 
to  death  by  the  sword.  Use  was  also  made  of  the  pro\'isions  of  the  later 
Roman  law,  in  individual  eases,  to  exempt  persons  of  the  higher  rank 
from  punishments  involving  life  or  limb.  Thus,  in  1611,  an  academic 
Council  set  up  the  principle  that  a  student,  who  had  committed  theft, 
should  be  spared,  since  he  was  "angesehener  Leute  Kind",  from  under- 
going the  death  penalty  otherwise  entailed  by  theft.  {Cf.  Leyscr,  "Sp.", 
532,  n.  15.)  The  University  of  Leipzig  in  the  1600  s  availed  itself  of  a 
special  papal  privilege  whereby  students  of  Leipzig  were  liable,  for  "homi- 
cidium",  only  to  life  imprisonment  and  for  theft,  only  to  banishment. 
The  electoral  Saxon  legislation  felt  it  necessary  to  abolish  this  and  es- 
pecially that  part  referring  to  manslaughter,  since  it  was  contrary  to 

234 


Chapter  VIII]     GERMANY  IN  THE  1500  s  and   1600  s  (§51 

a  matter  of  fact,  the  judicial  assumption  of  such  powers  was  fcjrced 
upon  the  profession  by  the  inactivity  in  legislation.  The  legis- 
lation of  the  various  States  merely  furnished  solutions  of  single 
points  (at  most  of  doubtful  value),  and  the  imperial  legis- 
lation, after  the  enactment  of  the  Carolina,  almost  completely 
abandoned  the  field  of  criminal  law.  We  encounter  nothing  other 
than  a  few  provisions  relating  to  blasphemy,  wanton  oaths,  and 
profanity,*  and  sundry  police  regulations  having  to  do  with  the 
trades  and  professions,  luxurious  living,  etc'  A  draft  was  made 
of  an  imperial  statute  to  check  the  increasing  excesses  of  duelling  ;  '' 
this  draft,  which  misguidedly  treated  the  principals  as  guilty  merely 
of  ordinary  manslaughter  and  their  seconds  as  accessories,  was 
not  enacted  as  an  imperial  statute,  but  was  given  effect  either 
by  the  local  law  in  various  States  or  by  the  so-called  "  Duell- 
mandaten  ",  which  were  based  upon  the  same  defective  principle 
and  were  out  of  harmony  with  public  sentiment.^ 

Absolutely  nothing  was  done  by  imperial  legislation,  and 
extremely  little  by  local  legislation,  towards  substituting  other 
penalties  for  the  punishments  by  mutilation  which  were  so  much 
used  in  the  Carolina  and  which  gradually  fell  more  and  more  into 
disfavor.  Little  was  done  by  legislation  towards  lessening  the 
number  of  the  simple  and  aggravated  forms  of  death  jienalties 
which  were  so  frequent  in  the  Carolina.  The  judges  felt  them- 
selves obliged  to  evade  the  statute.     This  tendency  undermined 

divine  command.  Cf.  Ziegler,  "De  juribus  majestatis",  Lib.  I,  o.  .'>,  n. 
26,  27.  Presumably  there  was  some  connection  between  these  privileges 
of  the  University  and  the  old  "benefit  of  clergy."  Carpzov,  II,  qu.  02, 
n.  20  et  seq.,  was  of  the  opinion  that  the  benefit  of  clergy  in  Protestant 
countries  could  no  longer  be  recognized  because  of  the  transfer  of  the 
jurisdiction  to  the  civic  authorities. 

"Transactio"  (i.e.  settlement)  with  the  party  injured  was  also  for  a 
long  time  given  force  in  mitigation.  Even  Carpzov,  II,  qu.  80  n.  11  ct 
seq.,  was  of  the  opinion  that  "transactio"  did  not  exclude  prosecution  by 
the  authorities,  but  that  it  precluded  the  "pcena  ordinaria."  Later, 
"transactio"  was  regarded  merely  as  a  ground  for  mitigation  of  tlie 
punishment  by  commendation  to  the  pardon  of  the  ruler.  The  view  that 
"transactio"  does  not  preclude  public  punishment  is  to  be  found  in  Oldc- 
kop,  II,  qu.  1.  Also  cf.  n.  23  el  seq.,  of  the  same  in  regard  to  the  many 
abuses  resulting  from  "transactio." 

*  R.P.O.  of  1577,  Tit.  1,  §  2,  Tit.  2  and  3. 

*  Concerning  such  matters,  the  Imperial  police  regulations  contained 
quite  extensive  provisions.  As  to  this  and  the  i)articular  provisions  there- 
with concerned,  cf.  Elben,  "Zur  Lehre  von  der  Waareiifälschuiig"  (1S81), 
pp.  52  et  seq. 

^  Imperial  opinions,  July  1608,  confirmed  by  imperial  d(>cree  of  same 
date. 

'' Cf.  especially  Heffter,  "Lehrbuch  des  gemeinen  deutschen  Straf- 
rechts", §  370.     E.g.  "Braunschweig-Lüneb.  Duell-Edict"  of  1087. 

233 


§  51]     THE  RENASCENCE  AND  THE  REFORMATION      [Pakt  I,  Title  III 

the  respect  for  the  statute  and  ultimately  led  to  almost  complete 
liberty  of  discretion  in  penalties.  And  it  spread  notably  as  soon 
as  the  Carolina  began  to  be  treated,  not  as  a  more  or  less  popular 
abridgment  of  the  Roman-Italian  law,  but  rather  as  a  code  whose 
principles  and  their  deductions  were  to  prevail  ov'cr  those  of  the 
Eoman-Italian  practice  in  case  of  conflict. 

Berlich  and  Carpzov.  —  This  last-mentioned  method  of  deal- 
ing with  the  Carolina  is  especially  noticeable  in  the  writings  of 
the  Saxon  jurists,  ]\Iatthias  Berlich  ^  and  Benedict  Carpzov.^ 
These  jurists  first  gave  an  independent  position  to  German  crimi- 
nal doctrine  and  practice  by  the  citation  and  discussion  of  the 
native  German  law  and  the  numerous  decisions  of  the  Saxon 
courts,  especially  of  the  Leipzig  Bench  of  "  Schöffen."  Carpzov's 
work,  in  spite  of  the  attacks  of  his  contemporary,  Oldekop,^"  exer- 

*  Berlich,  "Conclusiones  practicabiles",  I,  qu.  20,  n.  32:  "Et  certe  in 
delictis  atque  poenis  dictandis  magis  ad  Ordinationem  Caroli  erimin.  quam 
ad  definitionem  juris  civilis  respiciendum  est.  Prccdicta  enim  ordinatio 
juris  communi  derogate  This  work  appeared  first  in  the  years  1615-1619. 
As  to  Berlich,  cf.  Stintzing,  I,  p.  736. 

^  It  cannot  be  maintained  that  Carpzov,  in  respect  to  the  general 
theory  of  criminal  law,  marks  an  advance  in  comparison  \\'ith  the  Itahan 
writers.  He  ranks  rather  lower  than  Bossius  and  Clarus.  German  legal 
doctrine  is  merely  indebted  to  him  and  to  his  predecessor  Berlich  for  a 
certain  independence.  ("Nisi  BerUeh  berlichizasset  Carpzov  non  carp- 
zovaasset !  " )  Carpzov's  stri\ing  for  candor  and  his  love  of  justice  are 
everywhere  apparent ;  it  is  incorrect  to  charge  him  with  extraordinary 
severity.  (Cf.  e.g.  Ill,  qu.  116,  n.  11  et  seq.,  concerning  the  cruel,  irra- 
tional system  of  justice  and  its  greed  for  money;  also  III,  qu.  123.  n.  20 
et  seq.,  concerning  the  judges'  independence  of  the  orders  of  the  ruler.) 
But  he  is  entirely  lacking  in  the  matter  of  form  and  arrangement.  As  a 
bigoted  adherent  of  the  theological  legal  traditions,  he  regarded  the 
Mosaic  law  as  "jus  divinum  ",  having  precedence  over  the  law  of  the  land. 
{Cf.  Ill,  qu.  Ill,  n.  59.)  He  also  gave  broad  scope  to  the  crime  of  heresj-, 
and  indulged  in  a  most  absurd  discussion  of  sorcery.  He  also  often  con- 
fused proof  with  substantive  law,  and  the  legal  with  the  moral  valuation 
of  an  ofl'ense.  His  theory  of  "crimina  excepta",  i.e.  certain  very  grave 
crimes  in  which  the  usual  fundamental  maxims  concerning  proof  and  jus- 
tification should  not  be  regarded,  is  very  specious.  It  was  however 
shared  by  many  others. 

{Cf.  as  to  Carpzov,  especially  J.  S.  F.  Boehmer,  "Praefatio  ad  Bened. 
Carpzovii  practicam.")  Carpzov,  born  1595,  died  1666,  was  Professor 
and  "Ordinarius"  of  the  Leipzig  Law  Faculty  and  of  the  Bench  of  "Schöf- 
fen." It  is  said  that  he  pronounced  twenty  thousand  judgments  of  death. 
His  famous  "Practica  nova  Imperialis  Saxoniea  rerum  criminahum"  first 
appeared  in  1638. 

"  Oldekop,  born  1597  at  Hildesheim,  had  decidedly  a  subtler  mind  than 
Carpzov.  As  a  free-thinker  he  had  serious  doulots  about  the  justice  of 
the  witchcraft  procedure ;  even  at  this  early  period,  he  offered  the  true 
explanation  of  the  strange  confessions  made  in  such  cases.  He  had  a 
better  knowledge  of  the  Roman  law,  and  had  more  respect  for  statute 
law,  and  he  contended  justly  against  the  numerous  arbitrary  and  ill- 
founded  decisions  appearing  in  Carpzov.  However,  he  had  less  knowl- 
edge of  and  paid  less  attention  to  the  native  law,  and  for  this  reason  he 

236 


Chapter  VIII]      GERMANY   IN   THE    1500  S   AND    1600  S  [§52 

cised  a  predominating  influence  over  the  German  practice  for 
nearly  a  century.'^ 

§  52.  Recognition  of  the  Principle  of  Mitigating  Circumstances. 
—  The  evasion  of  the  Carohna  was  first  accompUshed  hy  the 
introduction  of  numerous  grounds  for  mitigation  of  punishments. 
Already  the  later  Italian  practice  ^  had  permitted  the  judge  to 
inquire  whether  the  legislator,  although  the  concrete  case  might 
fairly  be  within  the  general  provisions  of  the  act,  had  exactly 
such  a  case  under  contemplation.  The  more  the  harsh  penalties 
of  the  Carolina,  e.g.,  death  penalties  inflicted  for  the  violation  of 
a  mere  property  right,  came  to  run  contrary  to  public  sentiment, 
the  more  these  grounds  for  mitigation  were  recognized.  To  be 
sure,  they  often  strike  us  as  very  strange,  reminding  us  of  the 
reasoning  of  the  old  judgments  of  guilty  with  recommendation 
to  the  grace  of  the  ruler.^ 

Rise  of  Imprisonment  as  a  Penalty.  —  In  such  deviations  from 
the  statutory  penalties,  the  judge  exercised  a  free  hand.  One 
consequence  was  (and  here  the  maxim  "  Salus  reipublicse  suprema 
lex  esto  "  came  more  and  more  to  be  applied,  especially  after 
Pufendorf),  that  sentences  of  imprisonment  in  penitentiaries 
(workhouses)     now     came     into     vogue.'^       These     institutions 

does  not  have  Carpzov's  historical  significance.  ("Observationes  erim. 
u.  contra  Carpzovium  Tractatus.") 

1'  In  eastern  Germany,  Brunnemann'' s  "Tractatus  de  inquisitionis  pro- 
cessu"  (first  printed  in  1648)  was  highly  but  undeservedly  esteemed. 
He  was  Professor  in  Frankfort  and  died  in  1672.  There  is  absolutely 
nothing  original  in  this  bigoted  Protestant  jurist.  In  the  crudest  manner 
conceivable  he  continually  confuses  the  functions  of  the  judge  and  the 
legislator;    and  his  juristic  arguments  are  often  simply  nonsensical. 

'  Cf.  e.g.  Deciantis,  "Pr.",  VIII,  C.  14.  Also  M yn.singer,  "Oliserv." 
II,  30,  infers  that  the  judge  generally  has  the  right  to  change  the  punish- 
ment, even  if  a  "poena  certa"  is  fixed  by  the  statute. 

-  In  a  judgment  of  the  Faeultj'  of  Tül)ingen,  a  reason  for  mitigating 
the  sentence  was  that  the  father  of  the  offender,  guilty  of  pillaging,  through 
the  punishment  of  liis  son  "would  be  plunged  into  great  tribulation."  In 
Carpzov,  II,  qu.  80,  n.  100  are  mentioned,  as  reasons  for  mitigation,  the 
plight  of  the  offender's  wife,  and  his  young  children  still  dependent,  and 
his  promise  of  compensation. 

3  A  workhouse  was  erected  in  Berne  in  161.5.  in  Basel  in  1667,  and  in 
Celle  1710-17;U.  Cf.  Wnguitz.  '•Historische  Nachricliti'n  unci  Bi-iner- 
kungen  über  die  merkwürdigsten  Zuchthäusi>r  in  Deutschland"  (17!»2), 
II,  pp.  143,  229.  In  Netherlands  they  had  "ergastula  nautica"  which, 
as  stated  by  Damhouder,  were  often  far  more  feared  tluin  tortun-  and  the 
death  penalty,  and  of  which  Dnmhoudvr,  "Pra.xis  rer.  crim."  C  151.  draws 
a  terrible  picture.  Besides  con\icted  criminals,  there  were  sent  here 
vagabonds,  persistent  lieggars,  and  even  reprobate  sons  at  the  instanco 
of  their  parents.  However,  as  Damhouder  renuirks,  the  i)eo|)le  there 
confined  for  the  most  part  liecame  worse  (n.  24).  dreat  severity  of  treat- 
ment alternated  with  an  easy-going  regimen  of  pleasant  ease  (card-playing, 
etc.)  in  the  "Popina."     On  the  other  hand,  Damhouder,  "Praxis",  110, 

237 


§  52]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

had  been  erected,  since  the  })eginninf^  of  the  HiOOs  (first  in 
Lübeck  in  1613,  and  in  Hamburg  in  Kilo),  i)rimarily  as  a  poHce 
measure,  for  the  reception  of  unemployed  vagabonds.  Originat- 
ing in  the  cities  of  the  Netherlands,  they  found  increasing  approval 
and  wider  imitation.'^  Sentences  to  "  opus  publicum  "  ■'  were 
also  imposed  (for  which  authority  could  be  found  in  the  Roman 
law),  i.e.  to  the  building  of  roads,  fortresses,  castles  and  manor- 
houses,  to  military  service  against  the  Turks,®  and  even  to  labor 
on  the  Venetian  galleys.  The  treatment  of  the  prisoners  in  these 
institutions  varied  greatly,  and  the  sentences  of  the  judges  were 
thus  indefinite  in  their  consequences.  Originally,  the  rasping 
of  foreign  dyewoods  was  the  most  usual  occupation  for  prisoners.^ 
On  the  other  hand,  the  discretion  of  the  judge  might  at  any 
time  resort  again  to  the  old  punishments  by  mutilation.^  These 
did  not  completely  disappear  until  the  beginning  of  the  1700  s. 
In  the  first  third  of  the  1700  s,  cutting  off  the  hand  (in  certain 
cases)  is  the  only  remaining  punishment  of  this  character.^     More- 

n.  59  makes  mention  of  a  beneficent  school  in  Bruges  for  beggars  and 
other  despised  persons.  Concerning  the  erection  of  penitentiaries  and 
workhouses  in  the  Duchy  of  Holstein  during  the  period  1730-1740,  c/. 
Von  Warnstedt,  "Zur  Lehre  von  dem  Gemeinde- Verbänden,  kritische 
Beleuchtung  eines  Rechtsstreits"  (1878),  pp.  30  et  seq. 

^  Theod.  Reinkingk,  "De  regimine  saeeulari  et  ecelesiastico",  II,  1,  c. 
7,  n.  6  recommends  the  establishment  in  each  province  of  workhouses  for 
beggars,  vagabonds,  and  idlers.  Cf.  also  Pufendorf,  "De  jure  naturae  et 
gentium",  VIII,  c.  3,  §  4. 

5  Condemnation  to  "opus  publicum"  at  the  beginning  of  the  1600s. 
Cf.  Sande,  "  Decis.  Fris.",  5,  9,  dec.  3. 

^  Cf.  e.g.  Reinkingk,  II,  1,  e.  8,  who  describes  this  as  the  "optimus  rele- 
gand  imodus."  Opinion  of  the  law  faculty  of  Tübingen  in  1697  in  Harp- 
precht,  "Consilia",  I,  1,  n.  139;  also  condemnation  to  twelve  years  mili- 
tary service  against  the  French,  Harpprecht,  53,  n.  64. 

''  Cf.  concerning  the  workhouses  in  the  1600  s,  especially  Krausold, 
"Miracula  S.  Raspini",  (Merseburg,  1698)  ;  who  on  the  authority  of  Tabor 
draws  a  gloomy  picture  of  the  workings  of  the  "Triga",  i.e.  the  gaUows, 
public  flogging,  and  banishment  ("indurati  homines  his  .  .  .  poenis  non 
emendantur,  sed  efferuntur  potius  ut  excandescunt"),  and  complains  that 
in  spite  of  these  cruel  punishments,  the  country  was  infested  with  bands 
of  robbers  and  life  and  property  were  not  safe ;  as  a  substitute  penalty 
he  recommends  rasping  houses  [i.e.  where  the  prisoners  were  obliged  to 
rasp  wood  used  in  dyes].  Cf.  also  ibid.,  pp.  .52  et  seq.,  and  the  " Ordnung" 
of  the  Hamburger  House  of  1686.  Such  pictures  are  instructive,  in  view 
of  certain  theories  obtaining  at  the  present  time. 

^  Lauterbach,  "Collegium  theoretico-practicum",  48,  19,  n.  10  (Tü- 
bingen 1690,  et  seq.)  declares  himself  decidedly  opposed  to  corporal  and 
rnutilating  punishments.  Kress,  "Commentatio  succincta  in  Constitu- 
tionem  Criminalem  Caroli  V"  (Hannoverre,  first  ed.,  1721),  points  out 
that  the  putting  out  of  eyes  was  plainly  no  longer  an  effectual  penalty. 
Boehmer,  "Meditationes  in  Constitutionem  Criminalem  Carolinam"  (1st 
ed.  1770),  112,  §  1,  observed  that  cutting  off  the  ears  was  made  use  of 
only  in  the  case  of  deserters. 

'  Cf.  concerning  a  penalty  of  cutting  off  a  hand  inflicted  in  Oldenburg 

238 


Chapteu  VIII]      GERMANY    IN    THE    1500  S    AND    1600  S  [§  52 

over,  after  the  end  of  the  1000  s,  the  punishment  of  banishment 
(for  the  State's  own  subjects)  came  more  and  more  into  disfavor.'" 
Public  flogjiinp:  was  gradually  replaced  by  imprisonment  "  and 
by  corporal  punishment  not  public.  The  numerous  forms  of 
death  penalty  were  slow  to  be  repudiated.''  Eminent  jurists,''^ 
however,  protested  against  the  indignities  which  in  earlier  times 
were  often  inflicted  upon  the  corpse  of  the  offender;  Carpzov 
relates  that  even  in  his  time  the  death  penalty  had  in  many  cases 
been  supplanted  by  life  imprisonment. 

Change  in  Law  of  Proof.  —  Another  field  for  unlimited  judicial 
discretion  was  the  laiv  of  proof .  The  Carolina  '^  had  provided  that 
a  conviction  was  not  to  be  based  merely  upon  circumstantial 
evidence.  However,  some  Italian  writers  had  advanced  the 
opinion  that  since  in  the  "  extraordinaria  cognitio  ",'■'  the  judge 
was  not  bound  by  the  rules  of  the  "  judicia  publica  " ;  and  since 
in  that  "  cognitio  "  he  might  inflict  a  "  poena  extraordinaria  ", 
so  he  was  also  permitted,  in  a  case  where  the  proof  was  not  con- 
clusive, to  inflict  a  "  poena  extraordinaria  " ;  this,  however,  was 
less  than  the  "  poena  ordinaria  "  and  could  not  consist  of  a  death 
penalty.'^  To  harmonize  this  view  with  the  provision  of  the 
Carolina  prohibiting  the  infliction  of  criminal  punishment  upon 
mere  circumstantial  evidence,  that  provision  was  deemed  to  aj)ply 
only  to  graver  offenses  in  which  torture  could  be  applied  and  thus 
sure  proof  by  confession  could  be  obtained.'"     But  even  this  hist 

as  late  as  1714,  Leyser,  "Speculum",  604  n.  3,  and  concerning:  a  Mecklen- 
burg ease  of  this  character  in  1731,  cf.  n.  22  of  the  same. 

'"  As  to  the  evils  resulting  from  l)amshment,  cf.  licinhinglc,  1,  c.  II,  c.  7. 

"  In  Herlich,  "Concl.",  V,  57,  n.  .">,  can  be  seen  the  more  frequent  use 
of  "carceratio"  in  the  less  serious  of  the  graver  offenses,  and  as  early  as 
1617  a  Wiirtemburg  ordinance  suhstitute(l  for  corporal  puiiislinieiit  the 
punishment  of  "opus  publicum."  In  Hannover,  pul)lic  Hogging  and  the 
pillory  were  abolished  in  1727.      Kress,  Art.  19S,  §  4  n.  1. 

'-  From  the  philosophical  viewpoint  attacks  were  made  upon  capital 
punishment  as  early  as  Carpzov.  Cf.  Carpzov,  "Pr."  111.  qu.  101,  n.  26 
et  seq. 

^^  Cf.  however,  the  hesitating  arguments  in  Carpzov,  "I'r.".  Ill,  (pi. 
131,  n.  32,  et  seq. 

'•>  Carolina,  69,  22. 

1^  [For  thes(>  terms  of  criminal  procedure,  see  Esmcin,  "  History  of  Con- 
tinental Criminal  Procedure,"  transl.  Simpson,  in  the  present  Series, 
passim.  —  Ed.] 

'"  Cf.  Julius  Clams,  §  fin.,  qu.  20,  n.  4,  el  seq.  Another  well-known 
application  of  the  distinction  between  "ptrna  ordinaria"  and  "pcvna 
extraordinaria"  was  made  when  the  inquisitorial  i)ro<'e(lure  was  first  in- 
troduced. At  first  this  procedure  was  to  result  only  in  a"po'na  extraor- 
dinaria." Cf.  Bicner,  "Beiträge  zur  (leschichte  des  Inquisitionsprocesses". 
p.  FA. 

'"  Cf.  Bcrlich,  IV,  15  n.  8,  IV,  16  n.  11,  V,  46;    Carpzov,  111,  qu.  11(>. 

239 


§  53]      THE  RENASCENCE  AND  THE  REFORMATION      [Paut  I,  TiTLK   HI 

limitation  was  soon  no  longer  observed.  In  all  cases  where 
the  judge  was  "  morally  "  (i.e.  actually)  convinced  of  the  guilt 
of  the  offender,  but  there  was  an  absence  of  the  technical  legal 
proof,  i.e.  a  confession,  or  the  testimony  of  eye-witnesses,  he 
sentenced  the  offender  to  "  extraordinary  "  punishment,  or 
as  it  was  later  called,  "suspicion"  punishment  ("Verdacht- 
strafe ").^^  This  measure  was  used  in  cases  where,  though  the 
commission  ^^  of  the  act  was  proven,  some  one  of  the  elements 
of  the  crime  was  not  proven  legally  or  even  proven  in  any 
sense,  e.g.  the  live  birth  of  a  new-born  child  said  to  have  been 
killed  by  its  mother.^*^ 

§  53.  Doctrines  as  to  Judicial  Discretion  in  Defining  Crimes.  — 
In  the  case  just  considered,  an  act  was  punished  which  the  statute 
did  not  in  any  way  make  amenable  to  punishment.  But,  further- 
more, in  pursuance  of  this  tendency,  acts  came  to  be  punished 
which  were  not  even  reached  by  any  specific  definition  of  a  crime, 
but  were  in  the  personal  view  of  the  court  deemed  to  merit  pun- 
ishment ;  and  this  judicial  extension  of  analogies  was  carried  to  a 
pitch  nowadays  incomprehensible.  For  example,  Kress  ^  (who 
more  than  any  other  of  the  writers  on  criminal  law  prior  to  Feuer- 
bach  w^as  careful  to  abide  within  the  statute) ,  in  classifying  offenses 
into  crimes  against  the  law  of  nature  and  offenses  which  merely 
contravene  positive  law,  proceeds  to  observe  that  for  the  former 
the  criterion  is  the  "  sana  ratio  "  rather  than  the  "  variantes 
formulse  juris  civilis."  And  although  Leyser  -  in  one  place  com- 
plains about  the  arbitrary  reasonings  of  the  jurists  who  decide 
cases  not  according  to  the  statute  but  according  to  their  indi^•idual 
views  as  to  the  propriety  of  the  statute  for  the  case  under  consider- 
ation, yet,  when  he  comes  to  other  cases,  he  proceeds  in  the  same 
manner  as  those  whom  he  censures,-^  or  else  he  concedes  the  author- 
is  C/.  "Codex  Maxim.  Bavaric  Crim."  I,  C.  12,  §  11.  In  Electoral 
Saxony  the  "Verdachtstrafe"  had  obtained  statutory  recognition  at  an 
early  date.  "Const.  El.  Saxon."  33,  p.  4.  Cf.  Carpzov,  II.  qu.  81  n.  13. 
However,  many  had  raised  sound  objections  against  the  propriety  of  this 
"suspicion  punishment."  But  practical  need  carried  the  day  in  spite  of 
its  incorrect  theoretical  basis.  Cf.  Carpzov,  III.  qu.  142,  n.'3  et  seq.,  L. 
6,  D.  "De  accus."  48,  2  was  also  i-elied  upon.  C/.  Carpzov,  III,  qu.  116, 
n.  51;  Leyser,  "Speculum",  630,  n.  11. 
^^  Sande,  "Deeis.  Fris."  5,  9,  defin.  3. 

20  Cf.  Boehmer,  " Meditationes  in  C.C.C",  131  §  55,  who  here  punishes 
simply  for  "srevitia  in  cadaver  commissa." 

^  Kress,     "Commentatio    succincta    in    Constitutionem     Criminalem 
Caroli  V"  (Hannoverae,  1721),  112,  113,  n.  2. 

2  "Speculum",  537  n.  22. 

3  Cf.  Halschner,  p.  163. 

2-40 


Chapter  VIII]      GERMANY   IN   THE    1500  S   AND    1600  S  [§53 

ity  of  custom  ("  usus  ")  to  correct  the  shortcomin<;s  of  the  statute. 
Boehmer,  who  without  doubt  was  the  most  important  German 
writer  on  criminal  law  prior  to  Feuerbach,  is  of  the  opinion  that, 
since  "  salus  reipublicfe  "  is  the  supreme  guiding  principle  for 
interpreting  individual  statutes,  and  is  even,  where  the  circum- 
stances demand,  superior  to  the  statute,  it  is  permissible  to  ex- 
emplify this  doctrine  with  offenders.'  He  believes  that  no 
penalties  are  unconditionally  prescribed  by  the  statute. 
"  Augent,  secant,  temperant  jurisconsulti  " ;  even  death  pen- 
alties may  be  imposed  where  the  statute  speaks  only  of  a 
"  pcena  arbitraria."  '' 

Consequently  there  is  nothing  surprising  in  a  judgment  ren- 
dered in  1721  by  the  Faculty  of  Helmstadt  with  Leyser's  approval. 
A  man  charged  with  manslaughter  pleaded  self-defense,  and  the 
case  involved  considerable  doubt  because  the  records  of  the  pro- 
ceedings were  in  another  State  and  could  not  be  obtained  ;  the 
decision  was  that  "  in  order  to  protect  the  community  from  this 
dangerous  individual  ",  he  should  be  confined  in  a  penitentiary 
or  some  other  well-guarded  place  at  moderate  labor  for  the  rest 
of  his  natural  life.  Nor  are  we  astonished  that  Boehmer,  even  in 
cases  of  a  complete  acquittal  after  an  inquisition  (where  the 
torture  was  successfully  undergone  or  the  accused  was  put  to  his 
oath  of  innocence),  favored  confinement  in  an  "  ergastulum  pro- 
batorium."  Analogies  which  from  our  viewpoint  are  simply 
impossible  were  resorted  to  in  order  to  punish  acts  which  seemed 
morally  reprehensible  or  likely  to  be  dangerous.^ 

Where  the  power  of  the  judiciary  was  so  absolute,  partialit,\- 
was  sometimes  shown  in  the  judgments.     Often  persons  of  higher 

*  "  Meditationes  in  C.C.C",  Art.  105  §  .3.  As  to  increasing  the  penalty, 
see  Ziegler,  "De  juribus  majestatis"  (1681),  I,  c.  6,  n.  13. 

*  Berlich,  IV,  15,  n.  0,  was,  however,  of  a  different  opinion  in  regard 
to  "prena  arbitraria."  In  accordance  witli  the  common  hiw  he  would 
recognize  only  "pcxMia  pecuniaria"  and  ])anishment.  According  to  ('lunts, 
§  fin.,  qu.  83,  n.  11,  a  "poena  arbitraria"  should  at  least  never  amount 
to  capital  punishment. 

«  Such  decisions  may  be  seen  in  Berlich,  IV,  3G,  n.  30.  A  prison  guard 
who  had  got  with  child  an  imprisoned  maid-servant  and  lied  with  her 
after  she  had  destroyed  her  child,  was  without  hesitation  sentenced  to 
death  by  the  sword;  and  the  same  sentence  was  impttsed  on  the  girl. 

The  "apponere  scalas  ad  fenestras"  was  undi-r  certain  circiunstances 
to  be  punished  with  d<"ath,  IV,  n.  20.  Improprieties  were  punished  under 
the  title  of  "Stellionatus"  (Carpzor,  III.  qu.  133.  n.  2,  d  seq.).  Thus,  m 
1()95,  the  Faculty  at  Tübingen  unliesitatiiigly  puuisiied  a  man  for  mere 
failure  to  keej)  ä  jjromise.  Ilarpprcrht,  "Consil."  47.  Lcifscr,  "Specu- 
lum", 581,  n.  8.  considers  th(>  death  penalty  as  legally  justifiable  against 
one  who  seduced  the  daughter  of  his  master. 

211 


§  53]      THE  RENASCENCE  AND  THE  REFORMATION      [Paut  I,  TiTLK  III 

rank  received,  on  some  pretext  or  other,  light  sentences  for  crimes 
that  were  really  brutal.  At  times  the  judges  seem  to  havx-  abso- 
lutely lost  all  conception  of  the  gravity  of  the  crime.' 

'  Cf.  e.g.  Harpprecht,  "Consil."  I,  n.  139,  and  see  the  same  for  a  decision 
of  August  19th,  1681,  by  which  a  bold  highway  robbery  was  punished 
with  only  a  few  months  compulsory  labor.  In  another  passage  the 
Faculty  consoles  itself  with  the  reflection  that  divine  justice  must  have 
overtaken  the  individual  subjected  to  torture  where  he  loses  his  life.  In 
another  case  they  regarded  the  death  penalty  as  not  unreasonable,  because 
they  did  not  perceive  "how  the  young  offender,  who  had  neither  father 
or  mother,  could  have  been  saved  from  complete  ruin  of  body  and  soul." 
Harpprecht,  "Consilia",  I,  100. 


242 


Chapter   IX 


GERMANY  IN  THE   1700  s 


§  54.  Emaneipation  of  the  Law 
from  Theology.  Suppres- 
sion of  the  Witeheraft 
Trials.  Doctrine  of  the 
Law  of  Nature.  Progres- 
sive Jurists ;  Kress  and 
Boehmer. 

§  55.  Influence  of  the  Universities. 
Early  Treatises.  The  New 
Theories  of  Criminal  Law 
in  Italy  and   France. 


§56.  Legislation  of  the  1700  s. 
The  Bavarian  Code  of 
1751.  The      Austrian 

Theresiana  of  1769. 
The  Statutes  of  Fred- 
erick   II    of   Prussia. 

§  57.  The  Austrian  Code  of  Joseph 
II  of  1787. 

§  58.  The  Prussian  Landrecht  of 
1794. 

§  59.     The  Austrian  Code  of  1803. 


§  54.  Beginnings  of  a  Change.  Gradual  Suppression  of  Witch- 
craft Trials.  —  But  whik'  at  the  end  of  the  KiOO  s  the  judicial  power 
was  continually  encroaching  upon  the  legislative,  and  the  practice 
was  becoming  more  arbitrary,  yet  on  the  other  hand,  during  this 
period  and  at  the  beginning  of  the  1700  s,  a  distinct  improvement 
in  other  features  was  noticeable.  In  the  first  place,  enlighten- 
ment began  to  dawn  in  the  \"iews  upon  the  prosecution  of  witch- 
craft ;  and  when  we  contemplate  the  former  monstrosities,  this 
is  a  service  to  humanity  that  can  not  be  too  highly  estimated. 
Special  mention  should  here  be  made  of  the  Jesuit  Friedrich  von 
Spec  ^  and  of  the  valiant  efforts  of  the  indefatigable  jurist  Tho- 
masius.-  Kress  had  already  asserted,  although  rather  guardedly, 
that  it  was  difficult  to  accept  witchcraft  as  possible.''     Hoehmer, 

•  "Cautio  eriminalis  s.  de  proeessu  contra  sagas",  first  puhlishod  in 
1631. 

*  Cf.  particularly,  "Vom  Verbrochen  der  Zauberei"  (1701,  1702). 

'  "Casus  si  (labitur,  resi)c)ii(I(l)itur."  "Comment.",  Art.  44.  Judicial 
practice  came  to  be  more  exacting  in  the  acceptance  of  proof,  especially 
proof  of  the  injury.  CJ.  Wächter,  "Beiträge",  p.  301.  The  cautious 
Levser  however  would  not  absolutely  disavow  the  possibility  of  niagio 
("Speculum",  608). 

243 


§  54]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

by  the  middle  of  the  1 700  s,  treated  tlie  entire  proposition  as  a 
dehision.^ 

Emancipation  from  Theology  and  the  Mosaic  Law.  —  All 
throuf^li  the  eriminal  law  we  find  the  unwholesome  influence 
of  tlieology  gradually  eliminated ;  and  here,  too,  we  see  the  fear- 
less Thomasius  (the  practical  value  of  whose  work  is  to-day  entirely 
too  little  appreciated)  effectively  joining  in  the  contest  with  his 
numerous  minor  writings.  The  separation  by  the  legal  philos- 
ophers of  the  Mosaic  law  into  two  parts,  of  which  one  was  of  uni- 
versal obligation  and  the  other  of  special  application  only  to  the 
Jewish  peoples,  was  now  also  recognized  by  the  writers  on  criminal 
law,  in  the  sense  that  they  referred  the  penal  provisions  to  the 
category  last  mentioned  and  held  that  for  the  present  times  they 
had  no  application.  Ultimately,  legal  theory  no  longer  gave  any 
attention  to  the  Bible.  The  criminal  law  w^as  rested  simply 
upon  the  advantage  or  the  necessity  of  punishing  a  wrongful  act. 
These  principles  were  finally  made  popular,  and  gradually  brought 
into  currency  with  practical  writers  on  criminal  law,  by  Beccaria's 
famous  book,  of  which  mention  will  be  made  later.^ 

This  divorce  of  law  from  theology  led  to  a  recognition  of  the 
impropriety  of  the  persecution  of  those  of  another  religious  faith. ^ 
A  milder  treatment  ensued  for  offenses  allied  to  religious  belief, 
and  also  for  unchastity,  so  far  as  the  latter  did  not  also  constitute 
a  violation  of  the  rights  of  others.  Another  consequence  was  the 
attempt  to  draw  a  line  between  wrong  in  the  legal  sense  and  im- 
morality, and  to  reserve  the  former  alone  for  the  criminal  courts ; 
though  here  it  was  often  forgotten  (as  is  natural  in  such  revolu- 


*  "Meditationes  in  Constitutionem  Criminalem  Carolinam"  (first 
published  in  1770),  109. 

^  Cf.  e.g.  Reinkingk,  "De  reg.  saee.",  II,  2,  c.  2,  especially  §  5;  Sande, 
"Deeis.  Fris.",  5,  9;  Leyser,  "Speculum",  577,  n.  20,  and  as  marking 
the  conclusion  of  the  development,  cf.  Engau,  "Elementa  juris  crim." 
(5th.  ed.,  1760)  §  3,  who  absolutely  denies  the  juristic  obUgation  of  the 
Mosaic  Law. 

^  As  opposed  to  the  punishment  of  heretics,  cf.  especially  Ziegler, 
"De  juribus  majestatis"  (1681),  I,  16.  Nevertheless,  for  the  spreading 
of  dangerous  opinions  "propter  scandalum",  he  declared  banishment 
was  permissible  (n.  10).  Cf.  also  Frälich  v.  Frölichslichsbiirg,  II,  1, 
tit.  4,  §  4,  who  argues  that  the  "flebile  beneficium  emigrationis",  belong- 
ing to  the  adherents  of  the  Augsburg  Confession  in  accordance  ^^^th  the 
Augsburg  decree  §  24,  belonged  also  to  the  Reformers  after  the  Peace  of 
Westphalia.  Leyser,  "Speculum",  566,  in  such  a  ease  hniited  the  right 
of  the  authorities  to  banishment.  However,  he  conceded  the  compulsory 
imposition  of  religious  instruction,  to  the  end  that  where  possible  the 
party  in  question  might  be  rescued  from  his  error.  Cf.  ibid.,  a  decision 
of  the  Wittenberg  Consistorium,  to  which  Leyser  gave  his  appro^■al. 

244 


Chapter  IX]  GERMANY   IN   THE    1700  S  [^  TA 

tions  of  opinion)  that  law  has  its  basis  in  morahty  and  also  that 
the  violation  of  an  individnal  right  is  not  invariably  an  essential 
of  a  violation  of  State  security  in  the  objective  sense. 

Effect  of  Doctrine  of  Law  of  Nature.  —  Furthermore,  as  a  con- 
sequence of  the  rise  of  the  doctrine  of  a  Law  of  Nature,  human 
nature  was  now  taken  into  consideration.  An  act  which  is  merely 
the  result  of  a  strong  natural  impulse,^  if  not  in  direct  violation 
of  the  rights  of  others,  no  longer  ajjpeared  to  be  a  crime.  The 
psychological  analysis  of  crime  gradually  began  to  be  made,  and 
offered  a  foundation  for  a  general  theory  of  responsibiiit\' ;  for  it 
led  to  the  reflection  that  the  offender  has  not  imariably  enjoyed 
that  freedom  of  action  which  a  legal  system  permeated  by  the 
idea  of  eternal  perdition  had  assumed  to  exist.  The  doctrine  arose 
that  unless  the  criminal  had  acted  with  moral  freedom  ^  he  should 
not  undergo  the  full  penalty  of  the  law.  This  led  to  numerous 
further  inconsistencies  (later  criticized  by  Feuerbach),  and  another 
basis  for  discretionary  variance  of  decision  was  thus  created. 

Signs  of  Progress.  Kress  and  Boehmer.  —  Along  with  these 
elements,  tending  both  towards  a  breaking  down  of  the  old  law 
and  a  progress  to  a  better  system,^  it  is  notable  that  legal  science 
in  Germany  began  to  avail  itself  of  more  amjjle  sources  and 
methods.  The  Hollander,  Antonius  IMatthneus,'*^  in  his  Com- 
mentary upon  Books  47  and  48  of  the  Pandects,  had  indeed  suc- 
cessfully undertaken  to  interpret  the  Roman  criminal  law  in  its 
native  spirit,  without  foreign  mixture  and  under  the  guidance  of 
the  Roman  literature.  But,  on  the  other  hand,  the  knowledge 
of  early  German  sources  of  law,  which  had  been  graduallx-  accumu- 
lating since  Conring,  began  to  exercise  an  influence  upon  tiie 
method  of  dealing  with  the  criminal  law.  This  can  be  clearly 
seen  in  the  excellent  commentaries  of  both  Kress  "  and  Joh.  Sam. 
Friedr.  von  Boehmer,^^  the  latter  marking  the  zenith  of  German 

^  Cf.  e.g.  Kress,  "Commentatio  sueeineta  in  Constitutionem  Crim- 
inalem  Caroli  V"  (Hannovonr,  first  published  1721),  Art.  ISO.  §  8,  n.  2; 
Hommel,  "Rhapsodia  qiiirstioiuiin ".  441:  "  Lonofiniiim,  incostiis.  so- 
domia,  stuorum  sind  Ict/crcni  nicht  V('rl)ro('lu'n.  sonch'rn  nur  Unan- 
ständigkeiten, turpitudines." 

8  Conf.erning  these  theories,  wliich  hiter  were  lield  parlicularly  l»y 
Kleinschrod  and  Klein,  and  which  were  undisputedly  the  dominant 
theories  at  the  end  of  the  1700 s,  rf.  Fcncrhach,  "Revision  der  (iruiui- 
sätze  des  peinlichen  Rechts",  I,  pp.  274.  et  .scr/..  pp.  278,  270. 

"  This  is  to-day  frequently  overlooked. 

'"  "De  criminibus",  first  published  in  1()44. 

••  "Commentatio,  etc."  ;    see  note  7,  anlc. 

'2  "  Meditationes,  etc."  ;   see  note  4,  ante. 

245 


§  551     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

criminal  jurisprudence  prior  to  Feuerbach.  The  difference  be- 
tween these  writers  and  Carpzov  and  the  Italians  is  clearly  appar- 
ent. The  position  of  Carpzov  as  an  authority  was  completely 
destroyed  by  Boehmer's  " Observationem  zu  Carpzov's  Practica."'^ 

§  55.  The  Universities.  —  The  Commentary  form  of  exposition, 
hitherto  emi)loye(l,  now  fell  into  disuse  among  the  jurists,  and 
there  began  to  appear  systematic  treatises  on  the  criminal  law. 
This  was  primarily  due  to  the  instruction  now  begun  to  be  given 
in  the  universities.  During  the  1600  s  specific  courses  on  the 
criminal  law  were  not  given  at  the  universities.  Criminal  law 
received  attention  only  in  lectures  upon  the  Roman  law,  in  com- 
ments on  the  text  of  the  so-called  "  Libri  terribiles  "  of  Justinian.^ 
In  the  first  half  of  the  1700  s,  however,  criminal  law  began  to  be 
treated  as  a  separate  subject,  or  at  any  rate  in  conjunction  with 
criminal  procedure.- 

The  Early  Treatises.  —  The  first  "  compendia  "  of  the  criminal 
law  did  not  indeed  possess  any  special  scientific  value.  Of  these 
the  one  by  Engau,  "  Elementa  juris  criminalis  Germanico-Caro- 
lini  ",  appearing  first  in  1738,^  had  perhaps  the  widest  circulation. 
But  the  formulation  of  an  independent  system  always  sooner  or 
later  leads  to  an  attempt  to  establish  general  fundamental  prin- 
ciples under  which  the  individual  elements  may  be  classified,  and 
induces  a  deeper  investigation  of  the  subject-matter  of  the  law. 
The  arrangement  of  a  so-called  "  general  portion  "  in  the  early 
"  compendi  ",  although  rather  meagre,  must  in  criminal  law  more 
than  in  any  other  legal  study  have  been  an  important  help  and 
inspiration. 

But  the  interest  aroused  was  too  little  concerned  with  the  posi- 
tive (existing)  law.  It  inquired  rather,  what  the  law  should  be. 
That  compilation  which  was  regarded  as  the  foundation  of  the 
common  law,  i.e.  the  Carolina,  was  outgrown,  as  a  penal  system, 
by  the  advance  in  civilization  and  public  opinion.  The  theologi- 
cal foundation  of  the  Carolina  and  its  now  antiquated  methods  of 
expression  were  objects  of  ridicule.  Leyser  called  it  a  "  monu- 
mentum  inscientise  "  ;  and  Boehmer,  in  the  preface  to  his  "  Medi- 

"  "Bened.  Carpzovii  Practica  .  .  .  varus  observationibus  aucta  a  J. 
Sam.  Frid.  Boehmer"  (Francof.  1753). 

'  Von  Wächter,  "Gemeines  Recht",  p.  96. 

»  Cf.  Henke,  II,  pp.  166,  .306. 

'  As  to  other  compendiums  by  Gärtner  (1729),  Kemmerich,  Boehmer, 
cf.  Henke,  II,  p.  306;  Meister,  "Princ.  juris  crim."  (first  published  in 
1755). 

246 


Chapter  IX]  GERMANY  IX  THE   1700  S  [§55 

tationes  ",  said  of  the  Bambergensis  and  the  Carohna  :  "  magnam 
spirant  simpUcitatem  et  ipsa  compilatio  parum  saHs  in  autore 
arguit."  ^ 

This  explains  the  pecuhar  character  of  the  textbooks  of  this 
period.  Though  the  statutory  law  was  set  forth,  it  was  briefly 
noted,  and  then  was  given  no  further  attention.  The  writer's 
views  were  based  usually  on  any  sort  of  authority  whatsoe\er, 
and  always  in  accordance  with  the  humane  tendencies  of  the 
times,  especially  in  the  sense  of  placing  the  greatest  possible  limi- 
tations upon  the  power  to  punish  ;  ''  as  an  occasional  expedient, 
reference  was  made  to  the  undefined  power  of  police  control.^ 

The  New  Theories  of  Criminal  Law  in  Italy  and  France.  —  \  ct 
judicial  practice  instinctively  felt  that  by  this  emancipation  from 
the  positive  law,  it  was  working  its  own  destruction.  Hence  arose 
the  frequent  and  repeated  complaints  concerning  the  evasion  of 
the  statutes,  made  by  eminent  jurists  such  as  Leyser,  Kress,  and 
Boehmer.  But  (as  already  remarked)  they  themselves  in  other 
places  evaded  statutes  in  the  same  way.  This  accounts  for  the 
interest  displayed  at  this  time  in  the  establishment  of  a  correct 
theory  of  the  criminal  law,  which  might  serve  as  a  basis  for  a  new 
and  comprehensive  code  suited  to  the  times. 

The  new  ideas,  emanating  from  Italy  through  Beccaria  and 
Filangieri,^  and  from  France  through  Voltaire,^  found  in  Germany 
a  well-prepared  and  fruitful  soil.  Thus,  at  the  end  of  the  1700  s, 
there  began  that  conflict  of  criminal  theories  which  has  contiiuietl 
until  the  present  time.  The  beginning  of  this  conflict  is  marked 
by  the  essay  of  Globig  and  Huster,  on  "  Criminal  Legislation  ", 

*  In  order  to  be  correct  in  one's  judgment  of  such  statements,  one 
must  bear  in  mind  that  it  is  quite  a  different  matter  to  treat  the  Carolina 
in  a  purely  theoretical  and  historical  manner,  as  we  now  do,  and  to  speak 
of  its  law. 

ä  Malblank's  naive  remark  concerning  the  (earlier)  writer  on  criminal 
law,  ISIeister,  is  well  known :  "The  lamented  Meister  .  .  .  revealed  in  his 
criminal  judgments  a  heart  friendly  to  humanity,  and  he  possessed  in  a 
high  degree  the  ability  artfully  to  harmonize  his  kindly  sentiments  with 
the  law  so  that  one  never  perceived  a  marked  deviation  from  the  law 
and  yet  he  always  accomplished  his  purpose." 

«  Cf.  Hälschner,  p.  161. 

'  The  Austrian  Von  Sonnenfels  also  joined  vigorously  in  tlie  move- 
ment,—  especially  in  opposition  to  tiie  too-fre(iU('iit  (h'ath  sentences. 
Cf.  his  "Grundsätze  der  Polizei-,  Finanz-,  und  Ilandlungs-Wisseuschafl" 
(3d  ed.,  1777,  '.i  parts). 

»  Voltaire  made  it  his  especial  task  to  set  forth  the  injustice  done  by 
the  inquisitorial  procedure  of  his  time;  he  also  vigorously  assailed  tho 
theological  conception  of  law  and  the  State.  Cf.  especially:  "  Le  mupris 
d'Arras"  (1771),  and  "Prix  de  la  justice  et  de  I'humanite"  ("(Euvres", 
ed.  Beuchot,  Paris  1832,  Vol.  40,  pp.  ö-lü,  et  seq..  Vol.  öt),  pp.  254,  ct  seq.). 

247 


§  5ü]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Titlk  III 

which  received  the  i)rize  offered  by  the  Society  of  Economics 
at  Bern  in  1783.  The  main  thesis  of  this  work  was  the  need  of 
a  code  which  contained  a  complete  and  plain  formulation  of  the 
criminal  law,  —  althou.<;:;h  the  authors  (by  one  of  those  curious 
limitations  of  vision  frequently  recurring  in  history)  maintained 
also  that  any  doctrinal  interpretation  of  the  code  by  jurists  would 
be  superfluous  and  injurious. 

§  56.  Legislation  of  the  1700  s;  the  Bavarian  Code  of  1751.  — 
In  the  meantime,  there  had  already  been  considerable  legislative 
activity  in  three  of  the  most  important  States.  Bavaria  and 
Austria  had  received  comprehensive  codes,  —  Bavaria,  the 
"  Codex  Juris  Bavarici  criminalis  "  of  1751,  and  Austria,  the 
"  Constitutio  criminalis  Theresiana  ",  of  December  31st,  1769;'^ 
and  Prussia  had  made  reforms  in  several  special  statutes.  Both 
of  the  Codes  gave  evidence  of  a  considerable  advance  in  juridical 
and  technical  aspects. 

The  Bavarian  Code  contained  numerous  definitions,-  the  work 
of  an  able  jurist,  KreitmajT,  which  were  in  favorable  contrast 
to  the  prior  crude  method  of  framing  the  laws.  The  introductory 
and  final  sections  of  the  first  part  formed  a  so-called  "  general 
part  "  in  the  modern  sense,  although  admittedly  a  defective  one. 
Punishments  by  mutilations  were  abolished.^  Witchcraft,  how- 
ever, was  still  copiously  dealt  with ;  notorious  heretics,  who  "  do 
knowingly  utter,  support,  and  stiff-neckedly  maintain  opinions 
contrary  to  the  articles  of  the  Christian  Catholic  faith  "  were  to 
be  punished,  either  by  permanent  banishment  or  by  imprison- 
ment on  scanty  rations,  until  such  time  as  they  acknowledged 
and  abandoned  their  errors.  Those  wdio  zealously  spread  heret- 
ical doctrines,  or  misled  others,  or  incited  them  against  the 
authorities,  such  seducers  of  the  faithful  were  to  be  executed  with 
the  sword  and  their  bodies  burned  upon  a  funeral  pyre.  The  pro- 
visions against  poaching  were  very  severe.  In  several  provisions 
the  doctrine  of  the  1700  s,  of  the  absolutism  of  the  ruler,  still 
receives  emphasis ;  e.g.  any  contempt,  actual  or  apparent,  of  the 
command  of  a  ruler  is  in  itself  a  capital  offense.^ 

'  Both  deal  also  with  criminal  procedure.  Cf.  especially  Berner, 
"Strafgesetzgebung",  pp.  8,  etc. 

2  Cf.  the  provisions  as  to  attempt,  I,  12  §  3 ;  Instigation,  I,  12  §  5 ; 
Abetment,  I,  12  §  5. 

'I,  1,  §  8.  Branding  with,  a  hot  iron,  the  pillory,  and  flogging  were 
retained. 

■•  c.  11,  §  1.  Persons  who  had  been  banished  from  the  country  were 
threatened  with  death  in  case  they  returned.     They  were  to  be  executed 

248 


Chapter  IX]  GERMANY  IN  THE   1700  s  (§56 

The  Austrian  Theresiana.  —  The  Austrian  "  Theresiaim  "  of 
1709  is  a  carefully  elahorated  statute,  with  a  fairly  comprehensive 
"general  part."  E\ery\vhere  it  gives  evidence  of  the  endeavor 
to  do  injustice  to  none  and  conscientiously  to  balance  guilt  and 
punishment.  The  principle  of  the  mitigation  and  aggravation 
of  penalties  is  given  special  treatment,  and  is  also  carried  out  for 
the  separate  ofl'enses.  The  preface  states  that  a  purpose  of  the 
Code  is  to  eliminate  the  difficulties  encountered  hy  the  officials 
and  courts  because  of  the  dissimilarities  in  the  criminal  statutes 
of  the  separate  crown  territories ;  but  this  is  not  (as  Berner  would 
have  it)  ''  the  only  purpose  of  the  statute ;  for  the  defects  of  the 
previous  laws  are  also  expressly  emphasized  in  the  preface.  The 
Code  renounces  a  theological  basis  (in  principle,  though  not 
always  in  effect),  and  declares  the  purpose  of  punishment  to  be: 
the  improvement  of  the  offender,  the  satisfaction  of  the  State, 
and  the  deterrence  of  the  masses.  In  its  treatment  of  j)unish- 
ments  affecting  the  civil  status  of  individuals,  there  ai)pcars  a 
beginning  of  a  clearer  conception,  which  treated  certain  penalties 
as  barring  the  way  to  special  honors  but  not  as  affecting  ordinary 
callings,^  and  at  the  same  time  tried  to  make  them  suitai)lc  to  the 
nature  of  the  i)articular  crime  and  often  even  to  the  indixidual 
case.  Sorcery  was  treated  virtually  as  a  deception  and  fraud.' 
The  use  of  the  pillory  as  a  punishment  was  limited ;  exile  of 
subjects  of  the  crown  territories  was  to  be  imposed  only  with  the 
sanction  of  the  authorities. 


as  "contemners  of  the  command  of  the  hereditary  and  electoral  princes." 
Express  denial  of  allegiance  to  the  ruler  was  to  be  punished  by  quartering. 
11,8,  §  1. 

5  Berner  (pp.  l\  et  seq.)  is  too  harsh  in  his  condemnation  of  the  law, 
and  gives  his  attention  exclusively  to  its  darker  aspects,  which  will  he 
next  taken  up  and  are  indeed  very  conspicuous. 

8  As  to  loss  of  honorable  position  and  rehabilitation,  see  I.  10.  it  is 
remarked  that  military  service  is  in  no  way  to  l)e  regarch>d  as  a  punish- 
ment, but  rather  under  some  circumstances  as  a  scliool  for  obedience. 

^  Conditional,  however,  in  some  cases  ujion  the  assent  of  tlie  rulers. 
Cf.  Tr.  r.  Mnnshurg,  "Zur  Kntstehungsgeschiclite  der  Theresianisclien 
Halsgerichtsordnung  mit  l>esonderer  Rücksicht  auf  das  im  .\rt.  öS  der- 
selben behandelte  Crimen  magi;e  vel  sacrilegii  "  ( Wien.  ISSO).  r/.  the 
same,  pp.  59  and  (K),  for  a  remarkable  ojMnion  of  the  lmi)»>rial  Chancellor 
Prince  Kaunitz-Rietberg.  Prince  Kaunitz  vigorously  expn-sses  his  o|>- 
position  to  the  "arbitrium  judicis"  in  cases  of  capital  punishment,  to 
the  severe  use  of  corporal  punishm(Mit,  to  torture  iwliich  was  now  al)olislied 
among  other  civili/.ed  peoples),  to  branding,  and  to  the  "•Crimen  magia-  " 
which  was  generallv  ridiculed.  .Mso  cf.  U'nhlhcrq,  "  Forscluingen  zu 
(•(•schichte  der  alt-österreichischen  Strafgesetzgebung",  in  dniuhul's 
"Zeitschr.  für  das  Privat-  und  öfifentliches  Recht"  (VIII,  1881).  pp. 
254,  et  seq. 

249 


§  56]      THE  RENASCENCE  AND  THE  REFORMATION      [Part  T,  Title  III 

Nevertheless,  the  valuation  of  the  specific  crimes  showed  still 
a  thorough  spirit  of  bigotry.  Blasphemy  was  treated  as  the  "  first 
and  worst  "  offense.  Perjury  was  classed  as  a  kind  of  blasphemy. 
Apostacy  from  the  Christian  faith  was  a  crime.  That  the 
offender  was  a  Jew  was  sometimes  treated  by  the  lawgiver  as  a 
reason  for  increasing  the  ])enalties.  Sexual  relation  between  Jew 
and  Christian  was  a  crime,  punished  with  flogging.  Suicide, 
moreover,  was  ranked  as  a  crime,  —  in  keeping  with  the  inher- 
ently theological  and  moralizing  spirit  of  this  Code.  An  attempt 
at  suicide  (in  natural  correspondence  with  the  general  attitude 
of  the  courts  of  those  times)  was  punishable  with  discretionary 
penalties ;  and  the  body  of  the  self-murderer  was  to  be  destroyed 
like  that  of  a  beast.  Torture  was  expressly  preserved  in  its  most 
repulsive  forms  (fire,  etc.).  With  a  holy  and  well-meant  zeal  and 
a  spirit  of  crude  deterrence,  the  legislator  extended  the  death 
penalties  even  beyond  the  scope  of  the  now  ancient  Carolina  — 
in  some  cases  w^ith  a  really  barbarous  intensity  of  suffering.^  He 
even  considers  it  necessary  at  times  "  for  an  example  to  the 
masses  "  to  perform  execution  upon  the  corpse  of  one  who  had 
died  before  punishment. 

The  Theresiana  is  not  a  complete  code  in  the  modern  sense. 
The  legislator  sometimes  ^  refers  to  earlier  statutes ;  and  (as  in 
the  Codex  Bavaricus)  he  still  allows  the  judge  to  punish  acts 
which  are  merely  analogous  to  some  defined  crime,^°  —  although 
only  with  the  permission  of  the  appellate  court. 

The  Statutes  of  Frederick  II  of  Prussia.  —  In  like  manner  the 
separate  statutes  of  Frederick  II  of  Prussia  show  the  impression  of 
the  movements  for  reform.  One  of  the  first  acts  of  Frederick  the 
Great  had  been  to  abolish  torture  completely.^^  In  1744,  banish- 
ment was  superseded  by  imprisonment  in  a  fortress  or  peni- 
tentiary. The  punishment  of  infamy  was  also  substantially 
limited,  in  1756,  "  because  the  offender  who  is  subjected  to  infamy 
becomes  a  useless  member  of  society,  and  if  he  obtains  his  release 
from  the  prison  or  workhouse,  he  finds  himself  without  means  to 
earn  his  bread  in  an  honorable  way."  Capital  punishment  for 
several  classes  of  theft  (committed  without  violence)  was  abolished 
in  1743.     In  repealing  the  penalties  for  simple  unchastity,  the 

^  E.g.  by  first  tearing  open  the  breast ;   a  frequent  penalty  is  the  burn- 
ing and  mutilation  of  the  convict  prior  to  his  execution. 
9  Cf.  e.g.  II,  73. 
'»  I,  II,  §  10;    II,  104. 
"  Cf.  Hälschner,  pp.  174,  181. 

250 


Chapter  IX]  GERMANY  IN  THE   1700  S  [§57 

king  gave  consi(leral)le  attention  to  the  prevention  of  child  mur- 
der (a  problem  much  discussed  in  the  1700  s).  Here,  however, 
he  was  only  acting  in  accordance  with  the  spirit  of  the  times,  i.e. 
the  ideal  of  the  absolute  State,  j)()licing  morals  and  seeking  by 
severe  penalties  to  check  conduct  which  is  contrary  to  the  general 
sentiments  of  mankind  but  is  after  all  not  to  be  reached  by  coercive 
penalties;  a  policy  which  fritters  itself  away  in  a  mass  of  details 
that  now  seem  to  us  extraordinary.'-  By  a  rescript  of  December 
6,  1751,  the  bodies  of  suicides  were  no  longer  to  be  turned  oxer  to 
the  scavenger,  but  were  to  be  buried,  privately  but  honoraljly. 
Later,  however,  in  the  reign  of  Frederick  the  Great,  certain  of  his 
ordinances  show  a  reaction  against  too  great  lenity  on  the  part  of 
the  courts.  Thus  the  princi])le  of  the  "  talio  "  for  cases  of  homicide 
in  a  personal  encounter  was  restored;  for  the  aged  king  jierhaps 
felt  that  he  had  been  in  advance  of  the  spirit  of  the  times;  and 
another  ordinance  provided  severer  punishment  for  those  wIk; 
imperilled  the  safety  of  the  highways. 

§  57.  The  Austrian  Code  of  Joseph  II  of  1787.  — The  abolition 
of  torture  had  })een  effected  in  the  (icrman  Austrian  crown  lands 
and  in  (lallcia  and  the  Banat  by  an  imi)erial  decree  of  Jainiary  '.\, 
1776.  This  was  followed,  on  the  13th  day  of  Januar\-,  17n7.  by 
the  Austrian  Code  of  Joseph  II  dealing  with  crimes  and  penalties, 
in  which  an  attempt  was  made  (although,  on  the  whole,  with 
little  success  or  consistency)  to  realize  the  reformatory  ideals  of 
the  age.  The  legislator,  indeed,  undertook  his  task  with  suffi- 
cient seriousness.  It  was  his  desire  to  eliminate  all  desi)otism 
from  the  administration  of  criminal  justice,  and  to  draw  a  proper 
distinction  between  offenses  that  are  criminal  and  "  jjolitical 
offenses  "  {i.e.  police  measures).  An  endeavor  was  also  made  to 
strike  a  proper  balance  between  crimes  and  their  punishments, 
and  to  adjust  the  latter  so  that  their  influence  sliould  not  be  merely 
ephemeral.  This  task  the  statute  sought  by  means  of  short, 
concise  statements,  which  stand  in  favorable  contrast  with  the 
long-drawn-out  exj^ressions  theretofore  in  use. 

All  previous  penal  statutes  dealing  with  crimes  were  rcpc;dcd, 

'2  "Ciroulare  .  .  .  wogen  Rosich lifruiif;  dor  Sclnvanporschafl  lialhoii, 
solches  a1)(T  lou{?nondon  Woi])spors()non"  of  Aur.  1,  ITf)!)  ("Nov.  (\)rpus 
Constitutionum  Alaroliic",  II,  N.  74.  p.  158).  Ordinanoo  of  Fob.  S,  17C).), 
against  the  murdor  of  unborn  i]lo},Mtinia1o  oliildron,  ooncoalniont  of  prc«- 
nanoy  and  oonfinoniont  ("N.(\(\  March."  Ill,  pp.  ")Sr),  rl  svq.)  In  §  2  of 
tho  s'anio  tlio  disclosure  of  i)n'trnancy  is  required  on  iionaUy  of  si.x  years 
in  prison,  oven  if  Ihe  chihi  is  l)orn  alive.  It  is  further  proscribed  that  tho 
mother  at  the  time  of  delivery  shall  summon  assistance. 

251 


§  57]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Titlk  III 

and  ill  this  respect  the  Code  was  designed  to  be  comprehensive. 
For  the  first  time,  the  judicial  condemnation  of  an  act  by  analogy 
to  some  other  crime  was  now  completely  prohibited  ; '  and  thereby 
a  sanction  was  in  fact  first  giv^en  to  one  of  the  most  imj)ortant 
principles  of  modern  criminal  law.  At  the  same  time  a  limita- 
tion was  placed  uj^on  judicial  discretion  in  respect  to  punishments^ 
and  their  amount,  l)y  announcing  the  principle  which  we  at  the 
present  time  regard  as  self-evident,-  viz.  that  there  shall  be  no 
de\iation  from  a  statutory  penalty  except  by  special  authority  of 
law."^ 

Its  System  of  Punishments.  —  In  accordance  with  the  ten- 
dencies of  the  time,  the  Code  took  the  step  (rather  too  venture- 
some) of  abolishing  ^  all  capital  punishments  '^  (except  those  of 
martial  law).  In  its  treatment  of  punishments  involving  per- 
manent or  temporary  loss  of  status  and  honorary  rights,^  anrl  in 
its  abolition  of  periods  of  limitation,  the  Code  exliibits  a  high- 
minded  idealism.  But  this  aim  was  bound  to  suffer  shipwreck 
among  the  conditions  of  real  life.  x\nd  indeed  it  seemed  all  the 
more  out  of  place  alongside  of  harsh  penalties  still  retained,  — 
punishments  revolting  in  character  and  sometimes  studiously 
aggravated  "^  with  a  view  to  the  greatest  possible  deterrence ;  for 
it  prescribed  three  varieties  of  flogging   {i.e.   with  canes,   with 

1  Part  I,  §  1.     Part  II,  §  3. 

2  The  common  law  doctrine  had  regarded  it  as  justifiable  to  change  a 
penalty  fixed  by  statute.  In  France,  also,  until  the  period  of  the  Revolu- 
tion tlie  maxim  prevailed :   "Penalties  lie  in  the  court's  discretion." 

=■  I,  2,  §  13. 

^  As  a  matter  of  fact,  Joseph  II  favored  the  harshest  theory  of  de- 
terrence ;  capital  punishment  was  aboHshed  by  him  in  this  spirit  only, 
and  not  (as  in  Tuscany)  in  the  spirit  of  the  reformatory  theory.  As  to 
this,  cf.  Wahlberg  in  Grünhufs  "Zeitschrift",  VIII,  pp.  274  et  seq. 

^  I,  2,  §  20.  It  is  an  e^^dence  of  the  lofty  sentiments  of  -loseph  II 
that  offenses  of  "lese  majeste"  were  to  be  mildly  punished,  and  that 
there  should  be  no  death  penalty  for  high  treason  directed  against  the 
person  of  the  sovereign.  Cf.  Wahlberg  in  Grünhufs  "Zeitschrift",  VII, 
p.  573;  VIII,  p.  280.  The  Emperor  regarded  those  guilty  of  "lese 
majeste"  as  out  of  their  right  minds  and  proper  subjects  for  reforma- 
tion. 

8  According  to  I,  184,  the  offender,  after  undergoing  his  sentence  or 
receiving  pardon,  was  to  be  deemed  completely  rehabilitated,  and  no 
prejudice  thereafter  was  incurred  by  him. 

"  As  to  the  punishment  of  the  galleys  in  Hungary,  in  cases  of  con- 
demnation to  severe  imprisonment  and  public  labor,  cf.  "  Oesterreich. 
Criminalgerichtsordn."  of  1787,  §  188.  Hess,  "Durchflüge  durch  Deutsch- 
land, die  Niederlande,"  etc.  (Hamburg,  1800),  Vol.  7,  p.  117,  says:  "A 
Danube  vessel  towed  by  human  beings  is  so  repulsive  a  spectacle  that 
even  an  executioner  who  has  become  familiar  ^ith  breaking  upon  the 
wheel  will  turn  his  eyes  away."  Henrici,  "Ueber  die  Unzulänglichkeit 
eines  einfachen  Strafrechtsprincips",  pp.  94,  95. 

252 


Chapter  IX]  GERMANY   IX   THE    1700  S  [§57 

leather  whips,  or  with  birch  rods),  and  it  made  liberal  use  of  the 
branding-iron.*  Nevertheless,  the  central  element  of  the  system 
of  penalties  of  this  Code  of  Joseph  II  was  imprisonment.  The 
modes  of  imprisonment,  to  be  sure,  were  sometimes  such  as 
rational  good  sense  (of  even  the  Romans,  let  us  say)  would  never 
have  approved.^  F'or  example,  the  punishment  of  "  imprison- 
ment in  chains  "  consisted  in  chaining  the  criminal  in  a  dungeon 
so  clo.seIy  as  to  allow  only  the  necessary  movements  of  his  body ; 
this  penalty  always  included  an  annual  flogging  by  way  of  public 
example.  In  the  worst  forms  of  imprisonment,  the  offender  wore 
an  iron  ring  about  the  middle  of  his  body  by  which  he  was  fastened 
night  and  day  to  his  appointed  spot,  and,  if  the  labor  imposed 
upon  him  permitted,  heavy  irons  were  also  placed  upon  him. 

Its  Classifications  and  Definitions.  —  The  separation  of  offenses 
into  those  which  were  criminal  and  those  which  were  merely 
contrary  to  police  regulations  ^°  (a  distinction  which,  indeed, 
formed  a  step  of  progress)  was  likewise  marked  by  perversity  in 
its  application.  All  offenses  of  negligence,  a  number  of  offenses 
generally  deemed  dishonorable  (such  as  theft  up  to  25  gulden, 
and  cheating  of  a  heinous  sort),  and  many  other  serious  forms  of 
fraud,  were  treated  as  offenses  against  ])()lice  regulations  and 
withdrawn  entirely  from  the  jurisdiction  of  the  ordinary  courts ; 
while,  on  the  other  hand,  the  penalty  inflicted  by  the  police 
authorities  might  be  as  harsh  as  severe  flogging.^^  Though  the 
standpoint  of  bigoted  religion  was  abandoned,  it  was  replaced 
by  that  of  a  rigid  police  morality.  Blasphemy  was  no  longer 
a  crime ;  the  blasphemer  was  merely  treated  as  deranged,  until 
his  recovery  was  assured.^-  But  freedom  of  religious  faith  did 
not  really  exist ;  ^^  the  legislator  did  not  punish  heretics  as  such, 
but  he  still  exhibited  his  fear  of  their  influence  as  disturbers  of 
the  traditional  social  order.^^  Withal,  the  common  law  concep- 
tions of  crime  were  in  the  Code  warped  beyond  recognitit)n  and 

*  Sometimes  of  a  revolting  nature.  Public  branding  signified  that 
on  both  eheeks  the  figure  of  a  gallows  was  indelibly  branded  ;    I,  24. 

'  A  piece  of  perverted  refinement,  which  could  mostly  hurt  only  the 
family  of  the  convict,  was  that  the  income  of  his  property  was  confiscated 
during  the  period  he  was  undergoing  .sentence. 

'»  I,  2,  §  2.5.  "  I,  2,  §  27.  '-  II,  61. 

'•■'  As  to  this,  c/.  especially  Wahlbcrg  in  Griinhul's  "Zeitschrift".  VI II. 
pp.  281,  ct  .srq. 

■^  II,  f)4,  (').').  By  section  64,  the  pillory  and  strict  imprisonment  were 
prescribed  for  one  who  presumed  to  induce  an  adherent  of  the  Christian 
religion  to  abjure  that  faith,  to  renounce  all  religion,  or  to  accept  a  religion 
which  rejected  the  Gospel. 

253 


§  Ö8]      THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  TiTLE  HI 

])r()a(kMi('(]  into  vajijucness ;  offenses  were  dealt  with  in  the  most 
heterof^eneous  and  strange  combinations.  Apart  from  the  more 
difficult  questions  {e.g.  the  relationship  of  falsification  and  fraud) 
the  same  category  was  made  to  include  flefamation,  damage  to 
I)roperty,  and  nuisances  on  the  public  highways.  Pandering  for 
immoral  purposes,  the  offense  against  nature,  and  even  adultery, 
were  classed  among  the  so-called  "  political  offenses  ",  along 
with  incendiary  negligence  and  unlawful  disguising.^'  More 
attention  was  paid  by  the  legislator  to  external  incidents  in  the 
manner  of  commission  of  the  act  than  to  the  relations  of  rights 
and  wrong  and  the  social  interests  which  were  endangered  or 
injured  by  the  act.^®  As  a  result,  the  existing  and  well-established 
distinctions  in  the  definition  of  offenses  in  the  common  and  espe- 
cially in  the  German  law  were  completely  obscured,  while  at  the 
same  time  an  excessive  part  was  allotted,  in  the  definitions  of 
the  Code,  to  the  questionable  element  of  "  malicious  intent." 

§  58.  The  Prussian  Landrecht  of  1794.  —  The  criminal  portion 
of  the  "  General  Prussian  Territorial  Code  "  ("  Landrecht  "),^  after 
long  and  thorough  preparation,^  was  promulgated  February  5th, 
1794.^  It  may  be  justly  described  as  the  code  of  a  State  which 
undertook  to  be  a  moral  policeman  with  solicitude  and  conscien- 
tiousness, cherishing  the  belief  that  in  each  and  every  particular 
it  was  able,  by  means  of  education  and,  when  needful,  by  punish- 
ment, not  only  to  prevent  crimes  but  also  to  promote  the  welfare 
of  its  people.  Its  prison  penalties  were  relatively  mild.*  But  its 
commands  and  prohibitions  intruded  themselves  into  all  the  petty 
details  of  domestic  life.  Its  constant  preachment,  "  Beware  !  " 
sought  to  save  its  people  from  even  the  inducement  to  crime. 
The  State  was  not  at  all  disturbed  over  the  fact  that  the  precise 
acts  for  which  it  threatened  its  by  no  means  trifling  penalties 
were  either  left  too  little  defined  or  were  inherently  incapable 

15  II,  46,  57,  59. 

'"  Mendicancy  and  housebrawls  are  in  II,  59,  treated  together. 

1  Title  20  of  Part  2. 

2  Chiefly  the  composition  of  Klein,  later  made  Councillor  of  the  Supreme 
Court. 

'  As  to  the  earlier  drafts  and  preliminary  work,  see  especially  Hälschner, 
pp.  191  el  seq.  The  above-mentioned  prize  essay  of  Globig  and  Huster 
exercised  a  considerable  influence  in  the  compilation  of  the  Code. 

■•  The  statute  provided  for  imprisonment  both  in  a  penitentiary  (or 
fortress)  and  in  an  ordinary  jail.  No  excessive  measures  aimed  at  de- 
terrence were  incidental  to  these  penalties  of  imprisonment ;  except  a 
flogging  of  the  convicts  at  the  beginning  and  the  end  of  their  period  of 
confinement  (the  "welcome"  and  the  "farewell").     Cf.  e.g.  1197,  1227. 

254 


Chapter  IX]  GERMANY  IN  THE   1700  S  [§58 

of  being  reached  by  the  courts ;  ''  and  this  indifference  Is  often 
from  our  modern  viewpoint  hidicrous  enough.^  The  State  pro- 
ceeded upon  the  assumption  that  peaceableness  and  obedience 
are  the  foremost  duties  of  its  citizenry,  and  that  therefore,  where 
the  State  fears  that  its  foundations  (whose  destruction  would 
involve  that  of  everything  else)  may  be  attacked  or  even  dis- 
turbed or  prejudiced,  it  may  act  without  any  regard  for  modera- 
tion '  or  the  recognized  limits  of  justice.  Hence,  its  definitions 
of  offenses  were  as  elastic,  to  use  a  modern  expression,  as  india- 
rubber.^  It  was  willing  to  employ  such  rigorous  measures,  domi- 
nated as  it  was  by  the  notion  that  the  one  important  thing  was 
to  break  any  refractory  self-will  of  its  people.^ 

^  Cf.  especially  §§888-932.  §906  merits  special  mention:  "Any 
person  to  whom  an  unmarried  pregnant  woman  communicates  her  secret 
must  not  reveal  the  same,  under  pain  of  discretionary  but  substantial 
penalties  (§§  34,  35)  as  long  as  there  is  no  reason  to  anticipate  an  actual 
crime  by  the  woman."  §  929:  "It  is  also  incumbent  even  upon  persons 
who  do  not  occupy  a  special  relation  to  said  woman,  if  she  has  communi- 
cated to  them  her  pregnancy  or  has  confessed,  to  admonish  her  to  observe 
the  statutory  provisions  (§§901  el  seq.).'" 

^  Cf.  e.g.  §§  1308,  1309:  "Anyone  who  with  a  view  to  his  own  profit 
shall  by  means  of  slander  promote  discord  among  near  relations  or  married 
couples  shall  suffer  a  substantial  fine  or  corporal  penalty  proportionate  to 
the  malicious  intent  and  the  harm  resulting  therefrom."  "Anyone  who 
promotes  this  discord  with  a  view  to  deprive  the  natural  heirs  of  their 
inheritance  or  legacies  and  to  direct  such  to  himself  or  others,  shall  be 
punished  as  a  swindler."  §  933:  "No  one  shall  commit  against  or  in 
the  presence  of  a  person,  whose  pregnancy  is  evident  or  known  to  him. 
acts  which  are  likely  to  arouse  violent  emotions."  (!) 

^  According  to  §  93,  anyone  guilty  of  high  treason  was  to  be  executed, 
with  the  most  severe  and  horrible  punishments  of  life  and  limb,  propor- 
tionate to  his  evil  intention  and  the  injury  contemplated.  §  95  says : 
"Persons  guiltj^  of  high  treason  shall  not  only  forfeit  all  property  and 
civic  honors,  but  also  transmit  the  burden  of  their  calamity  to  their 
children  ( !),  if  the  State  with  a  view  to  avoiding  future  danger  shall  find 
it  necessary  to  banish  them  or  to  place  them  in  permanent  confinement 
(!)."  In  §  109  death  by  burning  is  imposed  for  the  betrayal  of  one's 
country. 

^  §  151  :  "Anyone,  who  by  impudent  and  insulting  criticism  or  ridicule 
of  the  laws  and  ordinances  in  a  State  shall  arouse  dissatisfaction  and 
restlessness  of  the  citizens  against  their  sovereign,  incurs  a  penalty  of 
imprisonment  in  a  fortress  or  jail  of  from  six  mouths  to  two  years  dura- 
tion." 

Cf.  also  the  perverse  provision  of  §  1.57  for  the  punishment  of  injury 
inflicted  in  self-defense;  and  §119:  "Anyone  who  knowingly  enters 
into  relations  whereby  the  State  in  any  manner  whatsoever  cmiUl  ( !) 
become  involved  in  external  insecurity  or  dangerous  complications, 
although  he  is  not  acting  with  evil  motive  and  although  no  liarm  actually 
comes  to  the  State,  shall  be  punished  by  imprisonment  in  a  jail  or  fortress 
for  a  period  not  less  than  six  months  or  more  than  two  years." 

'  Moreover,  the  State  must  be  de|)rived  of  nothing  useful,  nor  of  any 
of  its  useful  citizens;  cf.  §  14S  :  "Anyone  who  induces  a  factory  foreman, 
servant  or  workman  to  go  abroad  or  assists  him  therein,  or  wlio  reveals 
to  foreigners  secrets  of  manufacture  or  trade,  and  likewise  anyone  who 

255 


§  5S]     THE  RENASCENCE  AND  THE  REFORMATION      [Pakt  I,  Title  111 

The  legislator  {ip])ears  withal  to  have  re.ganled  his  newly 
devised  eommands  and  prohibitions  as  hardly  less  important  than 
the  offenses  enshrined  in  long-settled  tradition.  The  regulation 
of  masked  balls  and  masquerades  is  united  with  the  suf)pression  of 
rebellion  ;  and  the  petty  police  of  the  house  and  the  hunt  (on  such 
matters  as  those  contained  in  §  738  ^°  and  §  741  ")  is  given  prece- 
dence over  the  punishment  of  assaults  and  homicides.  Naturally 
enough,  a  code  so  characterized  by  its  attention  to  moral  police- 
manship  introduced  for  all  citizens  a  general  duty  of  preventing 
almost  every  variety  of  crime.  Every  man  became,  as  it  were, 
a  deputy  of  the  police  against  all  other  men.  Naturally,  too,  the 
offender's  willingness  to  confess  and  to  turn  State's  evidence  was 
made  a  general  reason  for  mitigating  penalties  ^- ;  for  here  the 
reprehensible  nature  of  the  offense  was  oft'set  bj'  the  offender's 
obedience  to  authority.  Moreover,  the  Code  was  designed  to  be 
a  book  of  general  influence  on  the  people;  by  instructing  them, 
it  helped  to  prevent  crimes.  Thus  it  aimed  to  render  super- 
fluous and  to  supplant  that  mass  of  legal  learning  which  the 
great  Frederick  in  his  da}'  had  so  abominated  (and  not  entirely 
without  reason). ^^ 

In  contrast  with  these  cardinal  defects,  the  Code  possessed 
certain  features  of  merit.  It  dealt  with  the  principle  of  responsi- 
bility in  a  more  systematic  and  correct  manner  than  any  of  the 
other  codes  already  mentioned.^*  Its  treatment  of  offenses  against 
religion  was  as  a  rule  more  correct  than  that  of  earlier  legislation.^' 

intentionally  deprives  the  fatherland  of  any  other  advantage  of  this 
character  in  favor  of  foreign  States,  incurs  a  penalty  of  from  four  to  eight 
3'ears,  imprisonment  in  a  fortress  or  penitentiary." 

1"  "Mothers  and  nurses  must  not  take  children  under  two  j'^ears  of 
age  into  their  beds  and  allow  them  to  sleep  with  themselves  or  -nith  others." 

"  "Travelers  or  hunters  who  carry  loaded  weapons  must,  if  they  enter 
a  house  or  sojourn  anywhere  among  people,  either  keep  the  same  under 
their  immediate  care  or  remove  the  charge." 

12  §§58  et  seq. 

"  The  legislator  did  not  limit  himself  to  penal  provisions ;  he  inter- 
sperses a  number  of  provisions  having  to  do  with  discipline  and  compensa- 
tion for  damage. 

^*  Negligence  was  no  longer  treated  as  a  mitigating  circumstance  of 
offenses  importing  malicious  intent.  Cf.  Hälschner,  p.  210  et  seq.  The 
merit  of  the  Code  herein  is  not  so  important  as  Hälschner  assumes,  since 
the  distinction  between  negligence  and  intent  is  not,  clearly  stated  and 
is  marred  by  presumptions. 

1^  These  are  classed  under  the  heads  of  insult  to  religious  companies, 
incitement  of  public  tumult,  incitement  to  disobedience  of  the  laws,  etc., 
and  disturbance  of  the  public  peace  (§§  214-218).  Nevertheless,  one  is 
reminded  of  the  earlier  notions  by  the  prohibition  to  found  a  sect  whose 
doctrines  openly  reject  reverence  of  the  Deity  (§  223). 

256 


Chapter  IX]  GERMANY  IN  THE   1700  S  [§59 

The  common  law  definitions  of  offenses  (so  rankly  distorted  in  the 
Code  of  Joseph  of  Austria)  were  preserved,  upon  the  whole,  much 
more  accurately.^®  And  here  was  apparent  that  able  technical 
equipment  of  the  draftsman  Klein,  which  Feuerbach  later  un- 
justly criticized. 

Thus  it  was  that  Prussia  after  all  attained  a  fair  success  with 
the  criminal  portion  of  its  General  Territorial  Law ;  for  in  the 
definition  of  those  offenses  which  are  most  important  in  the  daily 
administration  of  the  law  no  changes  were  made,  and  its  own 
special  additions  were  either  ignored  or  not  followed  to  their 
logical  consequences.^^  It  did,  indeed,  exhibit  those  shortcom- 
ings which  a  casuistic  legislation  always  entails ;  and  for  Prussia 
it  had  the  special  disadvantage  that  it  accustomed  the  Prussian 
practitioners  to  regard  their  law  as  something  entirely  apart,  and 
thus  effected  a  certain  separation  from  the  common  judicial  prac- 
tice of  Germany. ^'^ 

§  59.  The  Austrian  Code  of  1803.  —  The  frightful  severity  of 
the  Austrian  Code  of  Joseph  II  brought  about  during  the  reign 
of  Leopold  II  the  mitigation  of  a  number  of  its  penalties.  The 
penalties  of  imprisonment  in  chains,  labor  in  the  galleys,  public 
flogging,  branding,  restriction  to  a  diet  of  bread  and  water,  and 
sleeping  upon  bare  boards,  were  all  discontinued.  In  the  reign 
of  Francis  II,  the  work  ^  of  framing  a  new  code  reached  its  con- 
summation -  in  the  "  Penal  Statute  for  Crimes  and  Graver  Police 
Offenses  "  of  September  3,  1803. 


1"  In  this  respect,  indeed,  there  are  some  unfortunate  deviations  from 
the  common  law.  Cf.  §§  1110,  1366,  concerning  "furtum  usus",  poach- 
ing (§  114.5)  which  is  treated  as  theft  (sometimes  even  more  severely), 
forgery  (§§  1378,  1380). 

^^  An  example  of  such  a  perversion  of  definitions  of  offenses  may  be 
seen  in  §  1495:  "Upon  those  who  injure  the  country,  who  harm  many 
citizens  or  the  public  at  large,  or  place  them  in  jeopardy,  shall  in  everj- 
case  be  imposed  a  penalty  of  several  years'  imprisonment  in  a  fortress." 

1*  The  literature  of  the  Prussian  criminal  law  was  in  substance  a  mere 
collection  of  the  statutes.  Klein,  in  the  preface  to  his  book,  "(Irundsätze 
des  gemeinen  deutschen  und  preussisehen  peinlichen  Rechts"  (1796. 
2d  ed.  1799),  regarded  as  a  part  of  the  Prussian  law  tlie  general  maxims 
of  the  common  law ;  and  this  was  also  frequently  maintained  bj'  the  best 
Prussian  jurists. 

1  Cf.  llerhal,  "Handbuch  des  allgemeinen  österr.  Strafrechts",  1,  (6th 
edition,  1878),  pp.  9,  10.  Also  Wahlbcrg,  in  Cninhiil'.^  "Zeilschrift", 
VIII,  pp.  283  et  seq.,  especially  in  regard  to  the  opposition  of  Sonnenfels 
and  Froidevo,  to  tlie  reactionary  principles. 

-  In  1797,  a  draft  of  the  Code  had  already  gone  into  effect  in  West 
Galicia.  Tlie  Code  applied  to  all  the  provinces  of  the  Austrian  crown, 
with  the  exception  of  Hungary,  the  district  of  Hermanstädt,  and  the 
military  frontier. 

257 


§  59]      THE  RENASCENCE  AND  THE  REFORMATION      [Paut  I,  TiTLE  III 

III  this  Code  the  deatli  penalty  was  rotaiiicd  for  a  few  crimes 
besides  high  treason,  viz.  murder;^  liomicide  incidental  to  robbery, 
forgery  of  commercial  paper,  and  certain  cases  of  incendiarism. 
An  endeavor  was  made  to  give  rational  treatment  to  the  penalty 
of  imprisonment  in  its  various  aspects ;  although  the  spirit  of 
the  times  rendered  discrepancies  inevitable.  In  the  penalties 
affixed  to  crimes  (in  the  stricter  sense)  the  theory  of  deterrence 
clearly  prevailed.''  Even  in  the  penalties  for  misdemeanors 
("  Vergehensstrafe  ",  i.e.  punishment  of  the  graver  offenses  against 
the  police  measures),  while  a  distinction  was  made  between  im- 
prisonment with  and  without  hard  labor,''  there  is  no  lack  of  meas- 
ures which  were  ineffectual  or  were  such  as  injure  the  self-respect 
of  the  offender  and  render  difficult  his  reestablishment  in  the  civic 
community.  Corporal  punishment  of  persons  of  low  rank  was 
abundantly  dispensed.^  But,  the  judge  was  given  an  extensive 
power  to  mitigate  the  penalties ;  and  (as  observed  by  Herbst) 
the  Austrian  Code  of  1803  became  in  practice  one  of  the  mildest 
of  the  modern  codifications. 

The  "  General  Part  "  (as  Berner  correctly  points  out)  was 
framed,  in  contrast  to  most  of  the  later  German  codes,  with  wise 
reservations,  and  was  so  elastic  that  an  ample  field  remained  for 
adjustment  between  theory  and  practice.  The  definitions  of  the 
"  Special  Part  "  (like  those  of  its  forerunner,  the  Code  of  Joseph) 
were  in  many  respects  faulty;  and  the  classification  (as  crimes, 
misdemeanors,  or  lesser  offenses)  was  in  many  specific  instances 
open  to  objection. 

3  Murder  ("Mord"),  according  to  the  Code  (cf.  I,  §  107),  embraced 
also  the  manslaughter  ("Todtschlag")  of  the  German  Code.  "Todt- 
schlag"  according  to  §  123  is  a  "mahcious  act  dangerous  to  life  and  result- 
ing in  death." 

''  1,  §  14.  "The  worst  punishment,  i.e.  'Kerkerstrafe'  of  the  third 
grade  consists  in  this :  The  convict  shall  occupy  a  cell  removed  from  all 
companions,  in  which  however  he  shall  have  such  light  and  air  as  is  neces- 
sary for  the  preservation  of  health.  He  shall  always  wear  heavy  irons 
on  his  hands  and  feet,  and  there  shall  be  placed  around  his  body  an  iron 
ring,  by  which  he  shall  be  fastened  during  the  time  he  is  not  engaged  with 
his  labors.  On  only  two  daj's  of  the  week  he  shall  have  a  warm  but  small 
meal  of  meat,  on  the  others  he  shall  be  Hmited  to  bread  and  water.  His 
bed  shall  be  bare  boards,  and  he  shall  be  precluded  from  meeting  or  con- 
versing with  people." 

^  "Arrest"  of  the  first  and  second  grades. 

^  II,  §  17  :  "The  imprisonment  may  be  made  especially  severe  :  (a)  by 
corporal  punishment,  {b)  by  deprivation  of  food,  (c)  by  public  exhibition, 
(d)  by  hard  labor,  or  (e)  pubhc  common  labor."  II,  §  15:  "Corporal 
punishment  shall  be  inflicted  only  on  servants,  laborers,  and  people  of 
that  class  who  earn  their  livelihood  day  by  day  and  whose  imprisonment 
for  even  a  few  days  would  injure  them  in  their  occupation  and  their  sup- 
port of  their  families." 

258 


Chapter  X 
FRANCE,    FROM   THE    1500  s   TO   THE    REVOLUTION  i 


§  59a.  General  Features ;  Lack 
of  a  Criminal  Code. 

§  596.  Discretionary  Character 
of  the  Penal  System. 


§  59c.  Crimes:  General  Notions 
and  Classification. 

§  59d.     Penalties  in  Use. 

§  59t'.  The  Several  Crimes  and 
their  Punishments. 


§  59a.  General  Features ;  Lack  of  a  Criminal  Code.  —  The 
1500  s  find  France  virtually  at  the  end  of  the  niternal  struggle  for 
domination  between  the  royal  power  and  the  feudal  estates.  By 
the  1500  s  the  estates  are  organically  united  under  the  kingdom. 
By  the  IGOO  s,  under  Louis  XIII  and  Richelieu,  the  feudal  system 
is  completely  absorbed  in  the  sovereign  royal  power.  In  the 
1700  s,  under  Louis  XIV  and  his  successors,  royal  absolutism 
reaches  its  height.  And  though  the  seigniorial  jurisdictions  still 
survive,  and  the  royal  jurisdiction  is  divided  into  the  two  classes 
of  ordinary  and  extraordinary  jurisdiction,  yet  the  law  both  of 
crimes  and  of  criminal  procedure  was  substantially  the  same  in 
all  the  courts  of  this  period. - 

Amidst  this  progress  of  political  centralization,  its  accompany- 
ing activity  in  general  legislation  and  legal  science,  and  its  thor- 
oughgoing changes  in  private  and  public  law,  the  notable  fact  is 
that  the  criminal  law  of  France  underwent  no  radical  change.  It 
may  be  asserted  without  exaggeration  that  the  law  of  tlie  1200  s 
is  that  of  the  1700  s. 

•  [This  Chapter  is  taken  from  L.  von  Stein'.s  "Geschichte  des  fran- 
zösischen Strafrechts  und  des  Prozesses  ",  2d  ed.  1875,  pp.  58(i-(32{) ;  the 
translator  is  Mit.  Millar.  For  this  author  and  work,  and  the  translator, 
see  the  Editorial  Preface. 

§  59a  represents  a  condensation  of  the  author's  text ;  §  §  fidb-e  are  a 
translation  ;  slifj^ht  liberties  were  taken  with  the  text  to  adapt  it  to  the 
purpose.  —  En.j 

-  [For  the  history  of  criminal  procedure  in  France,  see  Esmdii's  "His- 
tory of  Continental  Criminal  Procedure,"  translated  by  Simpson,  being 
Vol.  V  of  the  present  Series.  —  Ed.] 

259 


§  5<.)aJ     THE  RENASCENCE  AND  THE  REFORMATION     [Part  I,  Title  III 

The  royal  Icj^islation,  ('xhil)itiiifj;  the  activity  of  the  new  royal 
power,  fills  the  first  half  of  the  f  500  s,  and  includes  the  Ordinance 
of  1493  and  Louis  XII's  Ordinance  of  Blois  of  1498,  dealing  with 
courts  and  procedure.  It  culminates,  for  that  century,  with  the 
Ordinance  of  Villers-Cotterets,  in  1539,  which  became  the  founda- 
tion-stone of  the  judicial  system  for  the  whole  ensuing  period.  A^A 
second  great  group  of  legislative  achievements  begins  under  Louis 
XIV,  with  the  Civil  Ordinance  of  1607,  regulating  civil  procedure  ;  * 
followed  by  the  Criminal  Ordinance  of  1670,  regulating  criminal 
procedure.  In  1673  came  the  Ordinance  of  Commerce,  and  in 
1681  the  Ordinance  of  Marine,  —  two  great  monuments  to  the 
initiative  genius  of  Colbert  the  statesman.^  But  amidst  these 
^^a^ied  legislative  products,  no  code  of  criminal  law  was  enacted. 
The  Old  Regime  in  France  never  had  a  Criminal  Code/J 

The  reason  for  this  notable  fact  la}'  perhaps  chiefly  in  the 
peculiar  history  of  French  criminal  procedure.  The  great  in\'en- 
tion  of  France  in  this  field  was  the  public  prosecutor.'^  This 
official,  as  a  part  of  his  function,  was  accustomed  to  make  a  mo- 
tion ("  conclusion  ")  specifying  the  penalty  which  he  demanded 
to  be  imposed  on  the  accused.  In  these  "  conclusions  ",  therefore, 
there  was  a  wider  range  of  variation  than  there  would  have  been 
under  the  strict  letter  of  a  criminal  code ;  and  the  power  and 
authority  of  the  official  prosecutor  was  correspondingly  enhanced. 
The  infliction  of  some  punishment,  apart  from  the  details  of  the 
specific  penalty,  was  enough  to  satisfy  the  interests  of  the  State. 
And  thus  the  criminal  law  was  content  to  be  embodied  in  these 
"  conclusions  ",  while  at  the  same  time  it  preserved  the  wide  dis- 
cretionary range  which  was  regarded  as  essential.  —  This  may 
explain  the  lack  of  any  legislation  during  this  period  comparable 
to  Charles  V's  German  code. 

Roman  Principles  in  France.  —  The  study  of  the  Roman  law  in 
France  culminates  in  the  middle  of  the  1500  s.  Alciat,  the  Hu- 
manist, Cujas,  Baudouin,  Doneau,  Douaren,  Hotman,  —  these 
were  the  notable  names  of  the  world  in  that  epoch. ^     But  the 

3  [The  subject  of  French  civil  procedure  is  treated  in  Engelmanns 
"History  of  Continental  Civil  Procedure,"  translated  by  Millar,  being 
Vol.  VII  of  the  present  Series.  —  Ed.] 

*  [The  work  of  Colbert  is  described  in  Vol.  II  of  the  present  Series, 
"Great  Jurists  of  the  World."  —  Ed.] 

6  [For  the  history  of  the  public  prosecutor,  see  Esmein's  "History  of 
Continental  Criminal  Procedure,"  being  Vol.  V  of  the  present  Series.  — 
Ed.] 

«[These  jurists,  and  their  work  in  making  France  the  center  of  Romau 

260 


Chapter  X]     FRANCE,  FROM  THE  1500  S  TO  THE  REVOLUTION      [§  59a 

effects  of  this  scientific  activity  were  widely  different  in  tiie  fields 
of  private  law  and  of  criminal  law. 

During  the  1500  s  the  numerous  bodies  of  local  customary  law 
were  reduced  to  codes,  pursuant  to  a  system  prescribed  by  royal 
ordinance.  These  customary  codes,  forming  a  native  French 
common  law,  came  into  competition  with  the  Roman  legal  science 
of  the  jurists.  The  task  of  the  next  two  centuries  was  to  recon- 
cile these  two  bodies  of  legal  principles.  Gradually  an  amalgama- 
tion took  place.  The  private  law  became  a  composite  one,  with 
the  Germanic  and  the  Roman  elements  varying  in  dift'erent  regions. 
\/But  in  the  criminal  law  no  such  situation  was  presented.  The 
codes  of  local  customs  contained  nothing  of  criminal  procedure, 
and  little  of  criminal  law.  Hence  no  such  contrast  and  competi- 
tion here  arose  between  the  local  native  principles  of  customary 
law  and  the  jurists'  principles  of  Roman  law.  The  Roman  law 
movement  of  the  times  thus  obtained  sole  and  unobstructed  domi- 
nation. The  private  customary  law,  when  codified,  had  become 
the  subject  of  university  study.  But  for  the  study  of  criminal 
law,  there  was  little  but  Roman  materials,  including  the  works 
of  the  then  modern  Italian  criminal  jurists.^ 

Moreover,  the  tendency,  above  mentioned,  to  merge  criminal 
law  and  procedure,  and  to  regard  the  former  solely  from  tlie  latter 
standpoint,  was  thereby  emphasized.  Both  were  developed  in 
the  hands  of  royal  judges,  trained  in  the  Roman  law,  who  had  no 
native  criminal  law  princii)les  to  master.  The  judge's  rooted 
tendency  to  merge  substantive  law  in  procedure  was  a  feature 
which  French  criminal  law  never  afterwards  lost,  A  natural 
consequence  was  the  subsidence  of  any  systematic  study  of  the 
substantive  law.  The  "  conclusions  "  of  the  public  prosecutor 
contained  all  that  was  needed ;  and  the  procedure  became  and 
remained  the  principal  object  of  attention.  And  thus  it  came 
about  that,  in  the  legal  development  of  France,  the  lack  of  a 
science  of  criminal  law  was  as  notable  as  the  lack  of  a  criminal 
code. 

Of  the  few  and  fruitless  attempts  of  jurists  to  place  the  sub- 
stantive criminal  law  on  an  independent  footing,  only  the  following 

law  study,  are  described  in  Vol.  I  of  tho  present  Series.  "A  General  Sur- 
vey of  Events,  Sources,  Persons,  and  Movements  in  Continental  Legal 
History."  Alciat  and  Cujas  are  the  subjects  of  special  studies  in  Vol.  II 
of  the  Series,  "Great  Jurists  of  the  World."  —  Ed.] 

'  [For  the  rise  of  criminal  h'^^al  science  in  Italy,  see  Calisse's  "History 
of  Italian  Law,"  being  Vol.  VI 11  of  tlie  present  Series.  —  Ed.] 

2Ü1 


§  öDfc]      THE  RENASCENCE  AND  THE  REFORMATION      [Paut  I,  TiTLE  IT! 

need  he  noted  :  Jean  Duret's  "  Traicte  des  peines  et  des  amendes  ", 
of  1453,  which  shows  the  main  outhnes  as  they  persisted  until 
the  1800  s;  Ayrault's  "  L'ordre,  formalite  et  instruction  judi- 
ciaire  ",  of  1570;  Soulatges'  "  Traite  des  crimes",  of  1762; 
Jousse's  "  Traite  de  la  justice  criminelle  ",  of  1771,  which  is  the 
standard  source  of  information  for  the  1700  s;  and  Muyart  de 
Vouglans'  "  Institutes  au  droit  criminel  ",  1747,  "  Lois  criminelles 
de  la  France  dans  leur  ordre  naturel  ",  17S0  (in  which  the  author 
sought  to  do  for  criminal  law  what  Domat  had  done  for  the  Pan- 
dects of  civil  law). 

§  596.  Discretionary  Character  of  the  Penal  System.  —  The 
criminal  law  of  this  whole  period  stands  in  a  close  and  peculiar 
relation  to  procedure.  While  the  latter,  even  as  to  matters  of 
detail,  came  to  be  treated  with  the  utmost  clearness  and  precision, 
it  w^as  far  otherwise  with  the  former.  Neither  legislation  nor  legal 
science  discloses  an\i:hing  like  a  systematic  and  well-defined  body 
of  criminal  law.  Positive  enactments  concerning  crimes  and 
punishments  did  not  produce,  as  they  did  in  Germany,  a  recog- 
nized subject-matter  to  which  the  functioning  of  procedure  is 
restricted ;  in  the  field  of  repression,  procedure  holds  absolute 
sway. 

It  was  this  situation,  more  than  anything  else,  which,  in  the 
preceding  period,  had  brought  about  the  ascendancy  of  the  royal 
judicial  officers,  —  which  had  enabled  them  to  make  themselves 
both  respected  and  feared,  throughout  the  kingdom,  as  the  re- 
lentless pursuers  of  crime  and  criminals,  irrespective  of  kind  or 
degree.  The  supplanting  of  earlier  forms  of  criminal  procedure 
by  that  of  public  prosecution,^  which  became  an  accomplished 
fact  in  the  1400  s,  had  placed  what  w^as  left  of  the  seigniorial  power 
completely  in  their  hands.  Moreover,  it  seems  to  be  true  that 
crime,  in  its  essence,  consists  in  the  idea  of  an  injury  sustained  by 
the  general  personality  through  the  injury  to  the  individual. 
Now,  w^hen  this  general  personality  attains  to  supremacy,  it  is 
quick  to  feel  injury,  and  encounters  on  every  hand  what  it  regards 
as  occasions  of  offense.  Thus  occurs  the  phenomenon,  of  which 
we  here  meet  an  example,  namely,  that  the  punishing  power 
increases  in  strength  as  the  ruling  organism  advances  toward 
absolute  dominion.  The  magistrates  of  the  King  looked  upon 
themselves  as  the  State ;    it  was  therefore  but  natural  that  they 

'  [I.e.  the  form  of  procedure  that  came  in  with  the  public  prosecutor. 
See  ante,  §  59a,  note  5.  —  Transl.] 

262 


Chapter  X]      FRANCE,  FROM  THE  1500  S  TO  THE  REVOLUTION     [§  .596 

should  undertake  to  determine  what  acts  constituted  crime, 
as  weh  as  to  settle  the  punishment  of  these  acts.  This  tendency 
of  bureaucratic  officials  to  force  slight  offenses  into  the  category 
of  serious  ones  and  to  heighten  the  severity  of  punishment,  is 
something  that  the  State  can  eft'ectively  counteract  only  by  a 
system  of  penal  legislation.  For  the  latter  has  a  twofold  signifi- 
cance in  the  present  regard.  Not  only  does  it  create  a  definite 
sphere  for  the  activities  of  procedure,  but,  at  the  same  time,  |t 
marks  out  certain  limits  which  the  State,  in  its  relation  to  the 
free  action  of  the  individual  (and  also,  consequently,  of  the  agents 
of  the  State),  may  in  nowise  transcend.  By  a  step  of  t^iis  sort, 
the  State  voluntarily  fixes  the  boundaries  of  its  own  jurisdiction 
in  the  domain  of  private  freedom,  and  recognizes  the  liberty  of 
the  individual,  as  opposed  to  its  own  absolutism. 

Such  a  system  of  legislation  the  French  kingdom  had  never 
had,  principally  because,  as  we  may  well  suppose,  the  monarchy 
had  never  been  inclined  to  concede  this  much  to  the  rights  of 
its  subjects.  In  any  event,  the  result  was  that,  down  to  the  time 
of  the  Revolution,  the  official  judge  and  the  official  prosecutor 
alone  had  the  power  to  declare  what  was  crime,  and  to  say  what 
penal  consequences  should  follow  the  act  so  declared  to  be  crime. 
In  the  absence  of  a  general  penal  law,  every  criminal  judgment 
came  to  be  a  law  for  its  own  case.  This  is  the  most  notable  char- 
acteristic of  the  repressive  function  during  the  period  before  us. 

When  some  act  had  come  to  light  which  either  the  judge  or  the 
public  prosecutor  regarded  as  calling  for  punishment,  the  juilicial 
investigation  was  set  on  foot.  On  its  termination,  the  prose- 
cutor formulated  his  complaint,  specifying  therein  some  particular 
punishment  which  he  sought  to  have  inflicted.  That  done,  the 
court,  after  consideration  of  the  complaint,  decided  the  matter 
according  to  its  individual  discretion.  And  it  was  this  individual 
'discretion,  and  this  alone,  which  determined  the  manner  and 
nieasure  of  punishment.  If  a  Regional  Custom  or  an  Ordinance 
had  already  prescribed  a  penalty  for  an  act  of  the  same  descrii)tion, 
it  could  not,  of  course,  be  ignored.  But  provisions  of  the  sort 
were  seldom  closely  observed;  instead  of  the  law  controlling  the 
judge,  the  judge  controlled  the  law.  The  condition  thus  existing 
could  noinail  to  give  rise  to  abuse  of  power  on  the  one  hand,  and 
insecurity  of  life  and  property  on  the  other.  And  enduring  as 
it  did,  almost  without  opposition,  from  the  löOOs  on,  it  power- 
fully contributed  to  exasperate  the  people  against  their  rulers,  and 

263 


§  596]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

to  emphasi/c  the  need  for  a  system  of  penal  legislation  resting 
upon  entirely  different  prineiples. 

Writing  in  the  middle  of  the  1500s,  Tmbert  says:  "In  this 
kingdom,  all  pnnishments  are  discretionary."  -  And,  in  a  note 
to  the  same  passage,  Automne  concedes  that  "  where  a  punish- 
ment is  discretionary,  and  is  left  to  be  determined  '  officio  judicis,' 
the  judge  has  power  to  sentence  the  offender  to  death  ",  as,  indeed, 
had  been  recognized  by  a  Decree  ^  of  1545.  Only  new  punishments 
the  judge  is  not  allowed  to  invent  or  apply :  he  is  restricted 
to  those  already  in  use.  This  fearful  power  is  still  unabated  in 
the  1700  s.  We  find  Jousse  "*  using  the  identical  words  of  Imbert : 
"  In  this  kingdom,  all  punishments  are  discretionary."  Criminal 
law  is  really  nothing  else  than  the  unfettered  will  of  the  judges. 
Nowhere  than  in  this  field  is  more  manifest  the  final  and  decisive 
triumph  of  the  royal  magistracy  over  the  old  law :  here  these 
agents  of  the  monarchy  reach  the  zenith  of  their  dominion  over 
public  and  private  right. 

Moreover,  this  state  of  things  moulds  all  legal  thought  in  penal 
matters.  Because  of  the  legislative  authority  of  the  judges  and 
prosecutors,  the  writers,  as  early  as  the  1500  s,  are  compelled  to 
devote  their  attention  to  cases,  instead  of  to  principles.  They 
deal  solely  wäth  individual  crimes,  and,  even  with  these,  in  a 
fragmentary  way.  Although  fuller  and  more  orderly,  Jousse's 
treatment  is  essentially  but  little  different  from  that  of  Duret. 
Any  science  of  criminal  law  that  the  present  period  possesses  is 
in  reality  scarcely  more  than  a  guide  to  procedure.  Positive 
enactments,  at  best,  furnish  mere  examples  for  practical  applica- 
tion. The  whole  penal  law  centers  in  the  "  conclusion  "  of  the 
prosecutor  and  the  judgment  of  the  court. /^No  doubt  the  legal 
profession  thereby  acquired  an  influence  and  standing  unknown  in 
countries  having  a  real  system  of  penal  legislation ;  but,  on  the 
other  hand,  the  same  causes  degraded  the  criminal  law  and  made 
it  the  mere  tool  of  police  administration^ 

So  much  for  the  general  character  "oi  the  criminal  law.  Our 
task  now  divides  into  two  branches.     The  first  is  to  ascertain 

*  "Practique  judieiaire  tant  civile  que  criminelle,"  Bk.  Ill,  c.  XX,  §  7 
(1548).  [This  book  first  appeared  in  Latin  under  the  title  of  "Institu- 
tiones  forenses",  soon  after  the  Ordinance  of  1539.  Stein,  p.  605. — 
Transl.] 

^  [For  the  nomenclature  of  French  royal  legislation,  see  Vol.  I  of  the 
present  series,  "A  General  Survey  of  Events,  Sources,  Persons,  and 
Movements  in  Continental  Legal  History,"  p.  249.  —  Traxsl.) 

*  "Traite  de  la  justice  criminelle  de  France,"  Pt.  I,  Tit.  I,  p.  4. 

264 


Chapter  X]      FRANCE,  FROM  THE  1500  S  TO  THE  REVOLUTION     [§  59c 

what,  in  the  main,  were  the  Hmits  of  the  prevaihnn;  notions  of 
crime  and  punishment ;  the  second,  briefly  to  survey  the  several 
crimes  in  so  far  as  they  came  within  the  purview  of  definite  legis- 
lation. From  a  practical  standpoint,  the  first  is  the  more  impor- 
tant ;  and  in  dealing  with  it,  we  are  not  to  lose  sight  of  the  fact  tliat 
the  courts  were  the  principal  instrument,  not  only  in  designating 
the  manner  and  measure  of  punishment,  but  also  in  the  develop- 
ment of  the  notions  into  which  wo  arc  inquiring. 

§  59c.  Crime ;  General  Notions  and  Classification.  —  Under 
conditions  such  as  those  above  outlined,  the  conception  of  crime 
must  needs  be  far  from  scientific.  In  the  older  days,  before  the 
Criminal  Ordinance  of  1G70,  there  had  been  no  attempt  what- 
ever to  attain  any  definiteness  in  this  respect ;  the  matter  in  all 
likelihood  having  been  left  entirely  to  the  interpretation  of  the 
courts.  Even  in  the  1700  s,  the  notion  is  still  vague  and  sterile.^ 
There  was  no  less  uncertainty  as  to  the  old  distinction  between 
"  crime  "  and  "  delit."  "  Delit  "  and  "  crime  "  soon  became 
convertible  terms.  Soon,  too,  and  especially  in  practice,  mere 
l)olice  offenses  became  classed  as  "  delits."  ^  Any  clear-cut  notion 
of  crime  was  consequently  out  of  the  question.  Crime  was  any- 
thing that  could  be  made  the  subject  of  punishment ;  and  any- 
thing could  be  made  the  subject  of  punishment  that  the  judge 
regarded  as  punishable.  This  feature  appears  to  have  been  most 
pronounced  in  the  1500  s  —  a  time  when  the  disturbed  condition 
of  the  public  peace  both  necessitated  and  excused  resolute  en- 
croachments on  the  part  of  the  judiciary.  Thus  Duret  classes 
as  punishable  offenses  such  matters  as  the  giving  of  "  false  direc- 
tions as  to  the  way  ",^  the  attempt  to  exact  excessive  dowries  and 
marriage  portions  ("dots  et  douaires  "),^  failing  in  "submission 
or  reverence  to  the  great  of  the  land  ",  '^  and  drunkenness  (com- 
plaining that  "  over-indulgence  in  wine  is  not  punished  according 
to  the  equitable  law  of  the  Ocrenses  whereby  the  drunkard  is 
inexorably  put  to  death  ").''  Here  too,  he  includes  idleness, 
mendicancy,  and  vagabondage.     Idleness  and  mendicanc\',  it  is 

1  Jousse,  "Justice  criminelle",  Pt.  I. 

Crime  signifies  any  unjust  act  tending:  to  injure  society  and  disturb 
the  public  peace,  which  is  forbidden  by  law  and  deserves  to  be  punished 
with  more  or  less  severity.  Lanqe,  "Nouvelle  pratique",  Bk.  I,  c.  1,  pp. 
2,3. 

-  "Aeeordinp:  to  Ihe  usage  of  the  l)ar",  "delits"  are  "the  lesser  'crimes^ 
and  those  which  require  a  merely  civil  rei)aration  or  a  pecuniary  penalty. " 
Jousse,  loc.  cit. 

3  "Traicte  des  peines  et  amendes",  pp.  47,  48. 

■»  Ibid.,  pp.  56-58.  *  Ibid.,  pp.  124,  125.  «  Ibid.,  p.  97  b. 

2Ü5 


§  rA)c\      THE  RENASCENCE  AND  THE  REFORMATION      [PAUT  I,  TlTLK  HI 

to  he  noted,  were  iJiiiiislied  iiDcler  Henry  II,  by  consif^nment  to  the 
galleys.  For  vagahondage  the  penalty  was  ordinarily  corporal 
chastisement,  but,  in  case  of  repeated  offenses,  the  offender  was 
to  be  put  to  death  (Ordinance  of  21  October,  löGl),"  and  every 
judge  had  jurisdiction  to  inflict  tlie  death  penalty. 

The  first  step  out  of  this  confusion  was  the  Criminal  Ordinance 
of  1G70.  By  introducing  a  definite  order  and  scale  of  punishments, 
it  came  to  supply  the  division  of  crimes  according  to  their  penal 
consequences,  and  thus  to  pave  the  w-ay  for  systematization  of 
the  criminal  law,  with  the  attendant  limitation  of  the  arbitrary 
powers  of  the  courts.  After  its  enactment,  we  begin  to  see  at- 
tempts at  classification.  These,  however,  are  wholly  destitute 
of  scientific  value,  being  in  part  purely  arbitrary,  in  part  merely 
practical.  Jousse  has  "  eight  ways  of  considering  crime."  ^  Of 
his  arrangement  we  need  only  mention  two  features.  One  is  the 
division  of  offenses  into  public  and  private,  atrocious,  aggra- 
vated ("  qualifies  "),  minor  ("  legers  "),  capital,  and  non-capi- 
tal.^ The  other  is  the  distribution  of  offenses  committed  by 
ecclesiastical  persons,  under  the  three  heads  of  common  offenses 
("  delits  communs  "),  privileged  offenses  (or  cases),  and  purely 
ecclesiastical  offenses.  Common  offenses  were  those  over  which 
the  secular  courts  had  exclusive  jurisdiction ;  privileged  offenses 
(or  cases)  those  over  which  the  secular  and  ecclesiastical  tribunals 
exercised  jurisdiction  in  common  for  purposes  of  investigation, 
but  whose  punishment  rested  solely  with  the  secular  courts.  The 
third  class,  purely  ecclesiastical  offenses,  concerned  only  the 
ecclesiastical  courts.  But  classifications  of  this  description  could 
lead  to  no  system  of  criminal  law.  They  represented  no  more 
than  abstract  standpoints  from  which  individual  crimes  were 
regarded. 

Equally  unsatisfactory  is  the  further  treatment  of  crime  in 
general.  In  dealing  with  this  part  of  his  subject,  Jousse  does  not 
once  touch   upon  the   notions  of  plurality  of  offenses,  ^'^   moral 

^  Duret,  op.  cit.,  pp.  12.5,  126. 

^  Loc.  cit. 

^  "How  then",  asks  Lange  (op.  cit.,  p.  3)  can  we  support  the  distinction 
between  capital  and  non-capital  crimes,  when  "all  punishments  are  dis- 
cretionary in  this  kingdom?"  "To  be  sure",  he  continues,  "there  is  not 
a  certain  determinate  punishment  for  everj^  species  of  crime",  but  the 
distinction  has  nevertheless  this  advantage,  that  it  prevents  the  judges 
"from  turning  minor  offenses  and  those  which  are  punished  with  least 
severity  into  offenses  of  a  graver  description."  This  passage  gives  us 
some  idea  of  the  fears  with  which  men  were  still  beset  in  the  year  175."). 

1"  ["  Concurrenz '.'  in  the  original  =  "concursus  delictorum  "  (Fr.  "cou- 

266 


Chapter  X]      FRANCE,  FROM  THE  1500  S  TO  THE  REVOLUTION     [§  o9c 

responsibility,  criminal  attempt,  criminal  intent,  or  the  constitu- 
ent elements  of  crime.  The  only  thing  taken  into  consideration 
is  the  impulse  ("  mouvement  "),  and  it  is  this  which  determines 
the  "  quantum  "  of  punishment.  How  Roman  law  conceptions 
had  invaded  this  field  is  apparent  from  Duret.  In  his  introduc- 
tion,^' he  tells  us  that  "  there  is  ordinarily  a  presumption  of  mali- 
cious intent  ('  dol  et  fraude  ')  in  the  case  of  crimes  ",  and  that 
punishment  is  to  be  increased  or  lessened  according  to  the  criminal 
impulse  ("  impetuosite  "),  the  manner  of  the  harm  ("  coustume 
de  mal  "),  and  the  circumstances  in  general.  The  judge  will 
weigh  the  criminal  facts  ("  qualitez  ")  on  every  hand,  and  there- 
upon decree  "  a  more  grievous  penalty,"  '-  —  or  else  "  the  judge, 
after  considering  the  cause,  may  limit,  or  altogether  dispense  with, 
the  punishment,  according  to  the  personal  condition  of  the  offender, 
his  ignorance,  or  unforeseen  error."  '^  Out  of  these  disjointed 
dicta,  Jousse  constructs  a  kind  of  system  in  his  chapter :  "  Con- 
cerning the  Aggravation  or  ^Mitigation  of  Punishment."  What 
we  find  here  is  in  truth  much  the  same  as  what  Beaumanoir  had 
said  in  the  1200  s :  there  is  but  little  advance.  Crimes  are  more 
or  less  serious  according  to  the  impulse  "  which  brings  about 
their  commission ",  or  according  to  "  their  attendant  circum- 
stances." '^  On  the  other  hand,  the  subject  of  accomplices  has 
a  whole  Title  to  itself,  and  is  dealt  with  at  considerable  length.^' 
Significant  of  the  absence  of  scientific  treatment  is  the  fact  that 
neither  the  name  nor  idea  of  Principal  anyw'here  appears.  And 
this,  we  take  it,  simply  because,  to  Jousse's  mind,  the  real  ques- 
tion is  that  of  the  punishment  of  the  participants,  and,  in  the  case 
of  the  principal,  that  question  answered  itself.  It  is  settled  by  the 
rule  now  adopted  from  the  Italians,  Julius  Clarus  and  Farinacius : 
all  who  join  in  the  offense  are  to  be  punished  alike,  whether  the 
case  is  that  of  conspiracy,  joint  principalship,  aid  by  remaining 
on  watch  extended  by  one  to  the  other,  emplo^Tnent  of  one  by  the 
other  to  commit  the  crime,  or  instigation  of  one  by  the  other  to 
the  same  end.  Where  the  offense  is  very  serious,  even  guilty 
knowledge    encounters    punishment    of    an    identical    description 

cours  de  plusieurs  delits")  which  exists  where  "a  plurality  of  yet  un- 
punished offenses  comes  before  a  court  as  the  subject-matter  of  a  single 
judgment."  Geyer  in  von  Hollzendorff's  "Rechtslexikon",  s.v.  "  Kon- 
currenz."  —  Transl.] 

"  "  Traiete  des  peines  et  amendes  ",  p.  6  b. 

>2/6(Vy.,  p.  8  b.  »/6(V/.,  p.  9  a. 

"  "  Justice  criminelle  ",  pp.  9-17.  "  Ibid.,  Tit.  II. 

267 


§  aOf/l     THE  RENASCENCE  AND  THE  REFORMATION     [Paut  I,  Title  III 

with  that  inflicted  on  the  actual  doer  of  the  criminal  act.  In  this 
regard,  especially,  Farinacius  dominated  the  views  of  jurists  in 
the  1700  s.  But  in  case  of  a  remote  participation,  where  the 
accomplice  is  not  the  proximate  cause  of  the  crime,  his  punish- 
ment is  always  moderated  according  to  circumstances.  The 
same  is  true  of  assistance  rendered  after  the  fact  —  receiving 
stolen  goods,  concealing  the  offender,  extending  him  mere  advice 
and  comfort.  More  exact  determination  is  left  for  the  individual 
case. 

§  59(1.  Penalties  in  Use.  —  In  France,  the  history  of  punish- 
ment, as  the  means  whereby  the  State  bends  to  its  own  the  will  of 
the  individual,  reflects,  even  more  faithfully  than  does  that  of 
crime,  the  several  stages  in  the  nation's  political  development. 
At  first  (according  to  the  greater  consensus  of  historical  opinion), 
the  infliction  of  punishments  is  a  purely  local  matter  and  their 
form  varies  with  locality ;  next,  the  system  is  thrown  into  con- 
fusion through  the  intrusion  of  Roman  law  and  the  usurpations 
of  the  royal  magistrates;  finally,  in  the  period  before  us,  there 
arises  a  general  consciousness  that,  as  all  France  is  under  the  sway 
of  one  body  of  royal  officials,  so  also  it  is  due  to  ha\'e  one  system 
of  punishments  which  shall  prevail  throughout  the  land. 

At  the  outset,  a  certain  element  of  uniformity  was  attained 
in  this,  that  the  magistrates,  of  their  own  accord,  everywhere 
imposed  the  same  sort  of  penalties.  The  underlying  cause  was 
the  adherence  to  the  old  methods  of  punishment  brought  in  from 
Germanic  sources :  the  judges,  as  we  have  seen,  were  forbidden 
to  invent  new  forms. ^  But  the  application  of  punitive  measures 
was  completely  discretionary :  even  the  provisions  of  positive 
enactments  affecting  the  case  seem  to  have  been  rather  a  guide 
than  a  rule.  So  far  as  legislation  is  concerned,  there  was  no  such 
thing  as  a  system  of  punishments,  and  even  the  legal  writers 
treat  these  in  a  cursory  and  merely  illustrative  fashion.^ 

The  resulting  absence  of  safeguards  for  life  and  property  brought 
about  the  Criminal  Ordinance  (1670).  In  Title  XXV,  Article 
13,  this  enactment  specified  certain  punishments  as  forming  a 
second  class  following  the  death  penalty  ;  and  thus  laid  the  founda- 
tion for  a  penal  classification.     INIeagre  as  was  the  provision  in 

^  See  Imhert,  ut  siip.,  and  also  Jousse,  ".Justice  criminelle",  I,  in,  p.  41. 

2  Although  Duret  follows  his  preface  with  the  outlines  of  a  scheme  of 
punishment,  he  does  not  furnish  any  description  of  the  punishments 
themselves.  Imhert  (Book  111,  c.  XXI)  speaks  of  some  punishments,  but 
without  any  intention  of  treating  the  subject  exhaustively. 

268 


Chapter  X]      FRANCE,  FROM  THE  1500  S  TO  THE  REVOLUTION     [§  59d 

question/^  the  Ordinance  was  received  with  much  satisfaction; 
for  men  felt  that  here  was  a  return  to  the  old  order  of  things  and 
the  starting  point  of  a  complete  penal  system.  Not  before  the 
1700  s,  however,  does  the  latter  become  fixed.  The  best  and  most 
comprehensive  exposition  of  it  is  that  given  by  Jousse.^  As  this 
system  had  incorporated  all  the  earlier  punishments,  a  brief  out- 
line of  it  will  be  sufficient  for  our  purpose. 

Capital  punishments  '^  form  the  first  class.     These  are  : 

(A)  The  death  penalty  (natural  death)  :  burning  at  the  stake ; 
breaking  on  the  wheel ;  quartering ;   hanging ;  or  beheading.^ 

(B)  And  further: 

(o)  Consignment  to  the  galleys  for  life.  The  punishment  of 
the  galleys  must  have  come  into  use  in  France  at  the  beginning 
of  the  1500  s,  but  definite  historical  proof  as  to  its  origin  is  lacking." 
The  earliest  Ordinance  which  refers  to  the  punishment  is  that  of 
15  jMarch,  1548,^  but  Guyot  ^  cites  two  Decrees  of  1532  and  1535, 
respectively,  in  which  mention  of  it  is  made.  Before  commencing 
his  service  the  prisoner  is  branded ;  and,  according  to  a  Declara- 
tion of  1677,  whoever  maims  himself  to  escape  the  punishment  is 


^  The  Article  runs  thus:  "After  the  punishment  of  natural  death,  the 
most  rigorous  are  those  of  torture  with  reservation  of  the  proofs  in  their 
entirety  ("question  avee  la  reserve  des  preuves  en  leur  entier"),  con- 
signment to  the  galleys  for  life,  banishment  for  life,  torture  \\athout  reser- 
vation of  the  proofs  ("sans  reserve  des  preuves"),  consignment  to  the 
galleys  for  a  term  of  years,  flogging,  'amende  honorable',  and  banish- 
ment for  a  term  of  years."  [The  distinction  between  torture  \\-ith  and 
without  reservation  of  the  proofs  was  this  :  in  the  former  case  the  prisoner 
was  not  released  if  he  successfully  withstood  the  torture :  the  proofs  in 
hand  could  still  be  used  against  him  and  might  result  in  his  conviction 
(although  not  in  a  sentence  of  death)  ;  while,  in  the  case  of  torture  with- 
out reservation  of  the  proofs,  ability  to  withstand  the  torture  resulted  in 
the  prisoner's  acquittal:  the  proofs  in  hand  were  said  to  be  "purged" 
and  went  for  naught:  Stein,  pp.  687,  688;  and  see  also  Esniein,  "History 
of  Continental  Criminal  Procedure",  transl.  Simpson,  being  Vol.  V  of  the 
present  Series.  —  Transl.] 

^  "Justice  criminelle",  Pt.  I,  Tit.  Ill,  with  which  the  same  author's 
notes  on  the  Criminal  Ordinance  may  be  profitably  compared. 

^  Op.  cit.,  p.  42  et  seq. 

^  The  headman's  block  took  the  place  of  the  gallows  in  the  case  of 
persons  of  noble  birth. 

'  [A  popular  account  ascribes  the  first  emplojTnent  of  convict  rowers 
in  France  to  the  1400  s,  wiien  .Jacques  Canir.  the  rich  mercliant  of  Bourges, 
put  into  service  four  galleys  thus  manned.  Galley  labor  as  an  official 
institution  is  said  to  date  from  the  seizure  of  these  four  vessels  by  Cliarles 
VII.  AUwij,  "Les  bagnes",  pp.  2,  3  (Paris,  184.^)  ;  Quautcr,  "Deutsches 
Zuchthaus  und  Gefängniswesen",  p.  150  (Leipzig).  —  Tran.sl.] 

*"Recueil  general  des  anciennes  lois  fran(.'aises",  XIll,  p.  70.  It 
speaks  only  incidentally  of  convicts  ("formats")  and  galleys. 

''"Repertoire  de  .Jurisprudence",  s.v.  "Galeres."  This  account  does 
not  refer  to  the  Ordinance  of  1548. 

2G9 


§  5y(/]     THE  RENASCENCE  AND  THE  REFORMATION     [Part  I,  Titli;  III 

put  to  death.  In  the  case  of  offenders  not  physically  fit  for  labor 
in  the  galleys,  the  sentence  is  generally  changed  to  that  of  banish- 
ment for  life.  Of  earlier  date  is  the  rule  by  which  convicts  re- 
leased from  the  galleys  are  forbidden  to  return  to  Paris  under  pain 
of  renewed  galley-.service.  P\)r  women,  life-imprisonment,  or  whip- 
ping followed  by  banishment  for  life,  takes  the  place  of  the  galleys.^*^ 

{b)  Banishment  for  life.  —  This  punishment  (as  also  banishment 
in  general  during  the  present  period)  is  derived  from  the  old  law. 
The  banishment  may  be  either  from  a  designated  part  of  the 
country .("  hors  du  ressort  "),  or  else  from  the  kingdom  at  large. 
It  was  much  disputed  whether  there  could  be  a  banishment  from 
the  kingdom  for  a  term  of  years/^  and  whether  banishment  for 
life  from  a  given  locality  could  be  classed  as  a  capital  punishment. ^^ 

(c)  In  the  case  of  extremely  serious  offenses,  criminal  proceed- 
ings may  be  brought  against  the  dead}^  Two  punishments  here 
come  in  question,  namely :  dragging  the  corpse  on  a  hurdle 
("  sur  la  claie  "),  and  judicial  condemnation  of  the  decedent's 
memory.^*  These  are  important  on  account  of  their  consequences. 
Every  capital  punishment  brings  with  it  confiscation  of  the 
offender's  property;  pronounced  against  the  living,  it  brings  also 
civic  death. 

Confiscation  (as  it  passed  from  the  old  law  into  the  regional 
Customs,  and  thence  into  the  newer  criminal  law)  is  in  principle 
simply  the  reversion  of  the  estate  to  the  feudal  superior,  whose 
grant  is  regarded  as  revoked  by  the  sentence  of  capital  punish- 
ment.    It  therefore   requires  no   special   judgment,   but  follows 

10  Both  Imbert  and  Diiret  are  silent  on  the  subject  of  the  galleys. 
Their  first  mention  appears  in  Note  q  to  the  second  Book  of  Imbert's 
work.  Jousse  teUs  us  nothing  of  their  earher  history.  (See  op.  cit.,  p.  47, 
et  seq.) 

"  Lamoignon  decides  in  the  negative,  as  do  most  of  the  other  writers. 
Guyot,  "Repertoire",  s.v.  "Bannissement." 

^  Jousse,  "Justice  criminelle",  p.  50  et  seq. 

"[This  "striking  peculiarity  of  the  Roman  law  of  treason"  appears 
also  in  Scottish  legal  history.  "Several  trials  for  treason  after  the  death 
of  the  criminals  took  place  in  Scotland  during  the  reign  of  James  VI., 
who  piqued  himself  on  a  strict  adherence  to  the  classical  standards  of 
antiquity,  though  he  frequently  selected  the  worst  models  for  imitation." 
Lord  Mackenzie,  "Studies  in  Roman  Law",  pp.  410,  411  (Edinburgh, 
1898).  —  Transl.] 

"  ["Condamnation  de  memoire":  the  "damnatio  memoriae"  of  the 
Roman  criminal  law.  "Damnatio  memorise"  ensued  in  cases  of  high 
treason  ("perdueUio")  and.  according  to  Motnmsen,  rested  on  the  notion 
that  in  this  instance  the  punishment  took  effect,  not  from  the  moment 
of  the  sentence,  but  from  the  moment  of  the  crime,  and  that  the  proceed- 
ing against  the  dead  offender  was  a  declaratory  one.  "Römisches  Straf- 
recht", p.  987  (Leipzig,  1899).  —  Transl.] 

270 


Chapter  X]       FRAXCE,  FROM  THE  1500  S  TO  THE  REVOLUTION     [§  ö9d 

automatically  upon  the  judgment  of  conviction.  That  it  must 
have  redounded  to  the  decided  benefit  of  the  feudal  lords  and  the 
judges  goes  without  saying.  The  situation  is  clearly  expressed 
by  the  maxim  which  forms  Article  183  of  the  Custom  of  Paris : 
"  He  who  confiscates  the  body  confiscates  the  estate."  ^^  It  is 
this  close  connection  with  the  feudal  relation  (and  consequently 
with  the  history  of  the  transformation  of  the  old  allodial  holdings 
into  fiefs,  which,  in  itself,  assumed  such  manifold  forms)  that 
enables  us  to  perceive  how  the  right  of  confiscation  came  to  exist. 
But  confiscation  was  in  nowise  a  general  consequence  of  every 
capital  punishment  throughout  France.  For  one  thing,  it  was  by 
many  of  the  custumals  confined  to  the  single  case  of  "  lese-ma- 
jeste."  Then,  again,  a  variety  of  rules  prevailed  as  to  the  kind 
of  i)roperty  subject  to  confiscation.  And,  finally,  in  the  regions 
of  written  law,  the  right  did  not  obtain  at  all.  Soon,  however, 
attempts  to  make  it  general  began  to  appear.  These  were  fos- 
tered by  two  things :  the  lack  of  definiteness  as  to  what  consti- 
tuted "  lese  majeste,^^  and  the  uniformity  of  procedure.  The 
magistrates  invented  the  rule  that,  in  regions  where  confiscation 
Avas  not  recognized,  the  heirs  were  to  be  assessed  a  suitable  fine. 
As  early  as  1588,  we  find  the  Parliament  compelled  to  enact,  by 
special  Decree,  that  the  fine  in  question  "  must  not  eat  up  the 
greater  part  of  the  convicted  man's  property."  ^"  By  the  Ordi- 
nance of  July,  1685,^^  it  was  fixed  at  one-fourth  of  the  estate.'^ 
As  might  be  expected  from  the  nature  of  the  right,  the  confiscated 
property  went  to  the  local  lord  of  the  High  Justice.^'*  Naturally, 
too,  these  confiscations  produced  an  important  revenue.  Like 
other  matters  of  the  sort,  they  were  the  subject  of  farming,  and  it 
was  chiefly  the  existence  of  this  practice  which  stood  in  the  way 
of  their  abolition. 

Closely  akin  to  confiscation,  is  the  other  consequence  of  capital 

'5  "Qui  eonfisque  le  corps,  il  eonfisque  le  bien." 

'«  Confiscation  in  cases  of  this  character  was  first  directed  by  the  Ordi- 
nance of  1.539,  which  pro\-ides  for  and  regulates  its  application  (Art.  1, 
11).  By  Art.  13  of  the  Ordinance  of  1679,  the  duel  is  put  on  the  same 
footing  as  lese  majeste. 

'"  See  Joiisse,  op.  cit.,  p.  100. 

'8  Art.  45. 

"  Jousse,  op.  cit.,  p.  100. 

="  ["Seigneur  Haut-Justieier  du  lieux."  For  the  high,  the  low,  and 
the  middle  justice,  see  Bn.sfiaud,  "History  of  French  Public  Law",  transl. 
Garner,  being  Vol.  IX  of  the  present  Series.  —  Traxsl.]  The  rule  stated 
in  the  text  gave  rise  to  a  host  of  questions  as  to  the  persons  thereby  en- 
titled. These  questions  are  discussed  by  Jousse,  loc.  cil.,  but  need  not 
be  here  entered  into. 

271 


§  5!W1     THE  RENASCENCE  AND  THE  llEFORMATION      [Part  I,  TiTLE  III 

punishments,  namely  civic  death.  It  is  derived,  in  part,  from  the 
rules  of  the  feudal  law  regarding  the  loss  of  "  respons  en  cour  ",  -' 
in  part,  from  the  Roman  law  notions  of  "  infamia  "  and  "  dam- 
natio  in  metallum."  -^  Civic  death  means  the  absolute  loss  of  all 
civil  rights ;  "  it  sunders  completely  every  bond  between  society 
and  the  man  who  has  incurred  it ;  he  has  ceased  to  be  a  citizen, 
but  cannot  be  looked  upon  as  an  alien,  for  he  is  without  a  country ; 
he  does  not  exist  save  as  a  human  being,  and  this,  by  a  sort  of 
commiseration  which  has  no  source  in  the  law."  ^^  Such  a  notion 
of  civic  death  appears  to  have  been  too  dreadful  even  for  the  legal 
writers  of  the  period.  Thus  Jousse  lays  it  down  that  civic  death 
destroy^  only  the  civil  rights,  —  the  right  to  sue,  to  testify  in  a 
court  of  justice,  to  make  a  will  or  take  under  a  will,  to  transfer 
or  take  by  gift,  —  leaving  intact  such  rights  as  appertain  to  the  "  jus 
gentium  "  —  the  capacity  to  contract,  and  even  to  enter  into  the 
marriage  relation.  But  marriage,  under  these  circumstances, 
is  without  ci\'il  consequences  :  the  children  are  incapable  of  inherit- 
ing from  either  father  or  mother.-"*  The  effect  of  civic  death  dates 
from  the  publication  of  final  judgment :  from  that  instant,  the 
man  is  as  dead,  and  administration  of  his  estate  takes  place. 
Nevertheless,  the  obligation  to  pay  a  life-rent  remains  unaffected ; 
and  he  is  equally  liable  for  an  unpaid  marriage  portion  due  to  his 
wife,  inasmuch  as  the  matrimonial  relation  is  still  regarded  as 
possible.^^ 

Xo  mention  of  this  penal  consequence  is  required  in  the  judg- 
ment ;  it  follows  as  a  matter  of  course,  and  is  effective  (without 
exception)  throughout  the  kingdom.  In  regions  where  the  law 
permitted,  civil  death  was  accompanied  by  confiscation ;  else- 
where, by  a  fine  assessed  against  the  heirs.  When  confiscation 
first  took  its  place  as  a  specific  and  independent  consequence  of 

21  [One  was  said  to  have  lost  the  "respons  en  cour",  "when  he  has 
lost  the  right  to  testify  in  a  court  of  justice  or  is  no  longer  entitled  to  act 
as  surety."  Ragueau  and  Lnuriere,  "Glossaire  du  droit  fran^ois",  s.v. 
"Respons"  (Niort,  1882).  —  Transl.] 

22  [Otherwise  "metalli  eoercitio"  or  "damnatio  ad  metalla"  :  con- 
demnation to  hard  labor  in  the  mines  ("Digesto  Italiano",  XVIII ;  I,  p. 
1442).  This  under  the  Empire  "was  regarded  as  the  heaviest  punish- 
ment after  that  of  death,  and,  as  in  the  case  of  the  latter,  was  preceded 
by  scourging.  It  carried  with,  it  the  loss  of  Uberty  and  necessarily  of 
property  and  other  rights."  {Mommsen,  "Römisches  Strafrecht",  pp. 
949,  950.)  "Damnatio  ad  opus  metalli"  was  a  distinct  punishment  of  a 
somewhat  milder  character.      {Ibid.,  p.  951.)  —  Traxsl.] 

"^^  Guyot,  "Repertoire",  s.v.  "Mort  civile." 
2*  Jousse,  "Justice  criminelle",  pp.  85  et  seq. 

25  Numerous  controversies,  tending  in  effect  to  a  mitigation  of  these 
rules,  are  here  mentioned  by  Jousse. 

272 


Chapter  X]      FRAXCE,  FROM  THE  1500  S  TO  THE  REVOLUTION     [§  59d 

capital  punishment  does  not  clearly  appear.  The  earhest  Ordi- 
nance, in  which  it  is  mentioned,  couples  it  with  transportation.-^ 
All  persons  sentenced  to  banishment  from  the  kingdom  and  to 
civil  death  are  to  be  transported  to  Corsica,^'  and  there  held  in 
confinement. 

To  punishments  of  the  second  and  third  classes  the  term  "  afflic- 
tive "  ^^  is  applied.  The  second  class  comprises  punishments 
which  are  at  once  afflictive  and  corporal.     It  includes  : 

(a)  Maiming  punishments :  slitting  or  piercing  the  tongue ; 
cutting  off  the  lips ;  cutting  off  the  nose  ;  cutting  or  burning  -^  off 
the  hand. 

(b)  Non-maiming  corporal  punishments :  branding  (scarcely 
ever  imposed  except  in  connection  with  flogging  or  consignment 
to  the  galleys) ;  flogging  (generally  employed  where  the  offender 
belonged  to  the  lower  classes  and  as  an  accompaniment  of  banish- 
ment for  a  term  of  years)  ;  the  "  carcan  "  ^^  and  the  pillory  (these 

-^  Ordinance  of  December,  1556,  "  Recueil  des  anciennes  lois  fran^aises", 
XIII,  p.  4G7.     Confiscation  is  not  referred  to  by  either  Iml)ert  or  Duret. 

-"Transportation  later  was  to  French  Guiana:  Ordinance  of  1763, 
"Recueil  general  des  anciennes  lois  franc^aises",  XXII,  p.  394. 

2*  [In  the  period  under  discussion  the  term  "afflictive"  as  applied  to 
punishment  appears  to  be  without  any  very  fixed  meaning.  Jousse's 
use  of  it  differs  \videly  from  that  of  Muyart  de  Vouglans.  The  latter  in- 
cludes all  the  punishments  specified  in  Tit.  XXV,  Art.  13,  of  the  Criminal 
Ordinance  (see  ante,  p.  9  7inte  3)  in  his  first  class,  which  he  treats  under 
the  heading  of  "Corporal  Punishments."  "We  shall  call  by  this  name," 
he  says,  "all  those  punishments  which  tend  to  destroy  the  body  or  to 
afflict  it  in  some  manner,  whether  }>y  mutilation  of  its  members,  or  on 
account  of  the  physical  suffering  which  they  impose.  For  the  same 
reason,  they  are  called  '  afflictive '  punishments,  altliough  this  latter  term  is 
ordinarily  employed  to  designate  such  as  tend  merely  to  deprive  the  man 
of  his  liberty"  ("Institutes  au  droit  criminel",  p.  398,  Paris,  1757). 
By  what  a  distinguished  French  author  of  our  own  day  calls  "an  e\al 
heritage  from  the  old  law",  punishments  under  the  present  French  penal 
code  (apart  from  the  case  of  police  offenses,  "contraventions")  are  either 
afflictive  and  infamous  ("afflictives  et  infamantes")  or  infamous  alone, 
or  else  correctional  ("correctionnelle").  "If  then,"  says  this  writer,  "we 
seek  a  definition  of  " afflictive'  punishments"  —  a  definition  whose  traces 
we  have  lost  for  want  of  histoincal  data,  and  which  is  no  longer  capable 
of  exact  formulation,  —  "  we  can  only  say  that  afflictive  punishments  are 
those  which  are  imposed  on  the  offender  with  the  purpose  of  'afflicting' 
him,  of  maldng  him  suffer;  while  correctional  punishments  are  those 
applied  to  the  criminal  with  the  object  of  reforming  him.  Tliis  is  how 
we  come  to  term  'detention'  (imprisonment  for  political  otTenses),  'reclu- 
sion'  (penitentiary  imprisonment)  as  afflictive  punishments,  and  'em- 
prisonnement'  (ordinary  imprisonment)  as  correctional,  although  each 
and  all  are  merely  punishments  which  deprive  the  man  of  liberty,  too 
often,  indeed,  undergone  in  the  same  establishment."  Ortolan,  "Ele- 
ments du  droit  penal".  Vol.  II,  §  KilO  (Paris,  1875).  —  Tr.\nsl.] 

-^  Burning,  however,  was  resorted  to  only  in  cases  of  löse  majeste  in 
the  first  degree. 

'"  ["The  "carcan"  consisted  of  an  iron  collar  which  was  clasped  around 

273 


§  r/Jd]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  TiTLE  III 

also  bc'iiis  frequently  recognized  as  proper  in  connection  with 
other  punishments). 

In  the  third  class  (according  to  Jousse),  that  of  non-corporal 
afflictive  punishments,  are  comprised  : 

Consignment  to  the  galleys  for  a  term  of  years ;  imprisonment 
("  rechision  ")  for  a  term  of  years;  exile  ("  exil  ")  ;  servile  labor 
(degrading  labor  performed  in  public)  ;  and  "  amende  honorable." 

E.vile  is  almost  always  pronounced  by  "  lettres  de  cachet  " 
and  is  to  be  distinguished  from  banishment  ("  bannissement  ") 
in  that  it  entails  no  infamy.  Servile  labor  is  mentioned  in  an 
Edict  of  10  November,  1542,  and  is  unquestionably  taken  from 
the  Roman  law.  Allied  punishments  sometimes  imposed  are 
condemnation  to  the  military  service,  and  degradation  from 
nobiliary  rank,^^  the  latter  occurring  only  as  a  complement  of  other 
punishments. 

The  punishment  of  "  amende  honorable  "  deserves  special  notice. 
It  dates  from  the  1100s:  the  "Etablissements  de  Normandie" 
mention  it  in  connection  with  parricide  and  infanticide ;  it  lasts 
until  the  Revolution.  As  treated  by  Imbert,  it  is  of  but  one  sort, 
and  is  pronounced  "  in  case  of  an  offense  against  the  honor  and 
authority  of  God,  of  the  King,  of  the  public  weal  (*  chose  pub- 
lique '),  or  of  a  private  person."  ^-  Subsequently,'''^  it  is  imposed 
in  cases  of  "  public  scandal  ",  and  appears  in  two  forms :  simple 
or  dry  ("  simple  ou  seche  ")  and  "  in  figuris."  Simple  "  amende 
honorable "  requires  the  offender's  presence  "  in  the  Chamber 
of  Council,  where,  kneeling  and  with  bared  head,  he  craves 
pardon,  but  only  of  the  persons  injured  by  his  act."  This, 
therefore,  is  the  most  drastic  form  of  personal  apology  that  can 
be  exacted.  The  "  amende  honorable  in  figuris  "  is  the  true 
"  amende  honorable  "  of  an  older  period.  It  takes  place  in  public, 
and  is,  in  essence,  an  apology  of  the  culprit  before  God  and  man 
for  the  offense  which  he  has  committed.  Clad  only  in  a  shirt, 
with  a  torch  or  taper  in  his  hand,  and  frequently  with  a  halter 
about  his  neck,  he  appears  before  the  door  of  the  court  house,  or 
the  church  (sometimes  before  both),  and  there  on  bended  knees, 

the  ofifender's  neck  and,  by  means  of  an  attached  chain,  served  to  secure 
him  to  a  wall  or  post.  —  Transl.] 

'^  ["Degradation  de  noblesse."  This  is  described  by  ^luyart  de 
Vouglans  as  a  species  of  civic  death,  differing  from  civic  death  proper  (see 
supra)  in  but  one  respect,  namely,  that  it  is  not  attended  with  confisca- 
tion of  property.     "Institutes  au  droit  criminel",  p.  414.  —  Transl.] 

3-  Imbert,  "Practique  judiciaire",  LIII,  c.  XXI. 

^^  Jousse,  "Justice  criminelle",  II,  p.  64. 

274 


Chapter  X]       FRANCE,  FROM  THE  1500  S  TO  THE  REVOLUTION     [§  59(f 

he  declares  that  "  falsely  and  in  despite  of  truth,  he  has  said  or 
done  such  and  such  a  thing,  and  that  he  craves  pardon  of  God, 
of  the  King,  of  the  officers  of  the  law,  and  of  the  offended  person."  ^ 
At  a  later  day,  the  expressions  to  be  used  are  specified  in  the  judg- 
ment.^' The  "  amende  honorable  in  figuris  "  was  seldom  imposed 
as  an  independent  penalty;  it  was  generally  combined  with  a 
capital  punishment,  and  took  place  before  the  execution  of  the 
latter.  ^Yomen  as  well  as  men  were  subject  to  it,  and  it  could 
even  be  pronounced  in  the  case  of  an  offending  corporation. 

With  the  single  exception  of  exile,  all  these  punislunents  entail 
the  infamy  of  the  offender,  —  a  feature  which  they  share  with 
the  fourth  class,  where  infamy  is  really  the  punishment  itself. 
In  this  fnjirth  class  —  the  infamous  ("  infamantes  ")  punishments 
—  are  included : 

Compelling  the  offender  to  wear  a  sort  of  foolscap,^®  and  con- 
veying him  in  this  ignominious  headdress  through  the  streets ;  ^^ 
public  exposition  on  a  scaft'old  or  ladder;  public  reproof  or  repri- 
mand ("  blame  ")  (in  suffering  which  the  offender  is  bareheaded 
and  kneels)  ;  deprivation  of  public  offices  or  privileges ;  the  public 
burning  of  seditious  writings  ;  and  fines  ("  amendes  "). 

The  burning  of  seditious  writings  takes  place,  without  any 
preliminary  judicial  investigation,  upon  the  simple  requisition 
("  requete  ")  of  the  public  i)r()sccutor.  It  is  accompanied  by 
prohibition  of  printing  or  sale,  and  the  command  to  all  and  sundry 
to  deliver  up  any  copies  of  the  objectionable  writing  that  may  be 
in  their  possession. 

In  the  highest  degree  characteristic  of  the  tendencies  of  the 
criminal  law  is  the  position  to  which  the  fine  becomes  relegated 
in  this  period.  The  fine  rests  upon  the  notion  that  reparation  of 
the  injury  inflicted  is  an  essential  part  of  the  punishment  for  every 
crime.  Hence,  as  the  State  comes  to  regard  the  sheer  criminal 
impulse  as  the  chief  element  of  crime,  the  fine,  as  a  punishment, 
disappears,  and  true  punishments  take  its  place.  While,  in  the 
period  before  this,  the  fine  had  been  restricted  to  the  case  of  mere 

'^  Imberf,  loc.  cit. 

'''  Jousse,  op.  cit.,  p.  66. 

^  "Estre  mitre",  aocordinp;  to  Imbort. 

"  ["Stow  relates  that,  in  the  seventh  of  Edward  IV,  certain  common 
jurors  must  (for  their  partial  conduct)  ride  in  paper  mitres  from  Xewpato 
to  the  Pillory  in  Cornliill,  and  there  do  penance  for  their  fault.  Apain, 
in  the  first  of  Henry  VIII  (I.')!)*.)),  Smith  and  Simpson,  ringleaders  of  falso 
inquests,  rode  the  City  (also  in  paper  mitres)  with  (heir  fac«>s  to  the 
horse's  tail;  and  they  were  set  on  tlie  pillory  in  Condiill."  Francis  Wall, 
"The  Law's  Lumber  Room",  2d  Series,  p.  52  (,  Londou,  1SÜ8).  —  Transl.] 


§  r/M]      THE  RENASCENCE  AND  THE  REFORMATION     [I'akt  I,  Title  III 

police  offenses,  a  wide  field  hud  yet  been  left  to  its  exclusive  domi- 
nance. In  the  present  period,  however,  the  time  of  the  absolute 
monarchy,  it  has  wholly  ceased  to  exist  as  a  true  punishment. 
Even  the  influence  of  such  of  the  Custumals  as  still  reco^mize  it  as 
such,  has  been  unable  to  preserve  for  it  the  old  significance ;  and 
it  becomes  nothing  more  than  a  mere  appendage  of  the  punishing 
power  proper.  How  this  evolution  has  been  brought  about  best 
appears  from  an  examination  of  the  result  —  namely,  the  law  of 
fines  in  the  1700  s.  Here  we  find  a  distinction  made  between 
criminal  fines,  police  fines  ("  amendes  de  contravention  "),  and 
civil  fines.  A  civil  fine  is  the  judgment  for  damages  awarded  in 
favor  of  the  civil  party.  Police  fines  ("  amendes  de  contraven- 
tion ")  are  applicable  in  an  extensive  and  well-defined  category 
of  oflFenses  :  injury  to  vert,  felling  timber,  stealing  wood,  poaching 
("  amendes  de  chasse",  "  amendes  de  peche  ")•  They  also  include 
procedural  fines^^  ("amendes  de  consignation  et  condamnation  ") 
and  fines  for  violations  of  the  regulations  concerning  the  administra- 
tion of  tax-farming  grants  ^^  ("  droits  des  fermes  "),^°  which  last- 
mentioned  class  had  its  origin  in  the  criminal  law  of  the  custumals. 
Criminal  fines,  in  short,  represent  merely  the  form  under 
which  the  penal  fines  of  the  old  law  linger  in  this  period.  Only 
in  the  most  exceptional  way  are  they  independent  punishments : 
"  The  fine  is  scarcely  ever  imposed  by  itself :  it  is  almost 
always  combined  with  some  other  punishment."  '^^  In  all  cases 
where  this  occurs,  its  amount  is  discretionary,  but  must  be  at 
least  equal  to  the  costs  of  prosecution.  In  payment,  it  is  post- 
poned to  the  judgment  in  favor  of  the  civil  party,  but  takes  pre- 
cedence of  all  other  pecuniar}'  penal  exactions,  even  that  of  con- 
fiscation, and  can  be  enforced  by  execution  against  the  body  of 
the  defendant,  i.e.,  the  latter  can  be  imprisoned  until  he  pays. 
How  this  result  had  been  worked  out,  it  is  difficult  to  say.  It  is 
not  unlikely,  however,  that  the  fine-maxims  of  the  old  custumals 
had  been  the  original  basis  for  determining  the  amount.  In  any 
event,  these  fines  formed  the  mainstay  of  the  magisterial  power 

38  [For  procedural  fines,  see  ante  §  39  /,  Glassoti.  —  Transl.] 

^*  [Uuder  the  monarchy,  all  revenues  arising  from  indirect  taxation 
came  to  be  farmed,  at  first,  by  local  contract,  but  later  (in  the  1600  s)  by 
a  general  contract  covering  the  whole  of  France,  made  with  a  single 
group,  the  farmers-general.  See  Brissaud,  "History  of  French  Public 
Law",  transl.  Garner,  being  Vol.  IX  of  the  present  Series.  —  Transl.] 

'"'  Guijot,  "Repertoire",  s.v.  "Amende."  Here  the  subject  of  poUce 
fines  undergoes  close  examination. 

^'  Jousse,  "Justice  criminelle",  pp.  69-72. 

276 


Chapter  X]     FRANCE,  FROM  THE  1500  s  TO  the  revolution     [§  Ö9(i 

in  its  dealings  with  the  lower  classes  of  society,  and  could  not  be 
other  than  a  grievous  burden  to  the  suffering  masses. 

Infamy,  as  has  been  said,  was  an  essential  feature  of  the  fore- 
going punishments.  The  notion  of  infamy  is  plainly  taken  from 
the  Roman  law,  and  we  find  it  here  quite  as  loose  as  it  was  there, 
A  distinction  is  made  between  infamy  in  law  and  infamy  in  fact. 
What  their  respective  consequences  were,  does  not  distinctly 
appear :  even  Jousse  is  not  entirely  clear .*^  Infamy  disqualifies 
one  from  taking  office ;  the  official  who  incurs  it  is  compelled  to 
relinquish  his  place ;  the  infamous  man  cannot  testify,  or  else  his 
testimony  is  regarded  as  untrustworthy.  An  important  question 
in  this  connection  concerns  the  imposition  of  an  unconditional 
fine.  If  this  is  not  to  be  followed  by  infamy,  the  judgment  must 
expressly  so  declare,  by  adding  the  words  "  without  that  the  said 
fine  carries  any  note  of  infamy." 

The  fifth  class  consists  of  the  merely  civil  punishments  ("  peines 
non  infamantes  "),  which  are  : 

Admonition  or  warning  (sometimes  coupled  with  a  fine)  ;  the 
"  aumone ' V^  (a  pecuniary  mulct  distinguishes  from  the  "  amende  " 
in  being  non-infamous) ;  the  "  poena  dupli,  tripli,"  etc.  (applicable 
only  in  the  case  of  embezzlement  of  public  moneys  and  complicity 
in  criminal  bankruptcy) ;    and  some  others  of  lesser  moment.^ 

There  remains  to  be  mentioned  the  matter  of  imprisonment. 
Imprisonment  is  distinctive  in  its  nature,  in  that,  with  its 
adoption  as  a  punitive  measure,  there  begins  to  arise  the  notion 
of  an  end  in  punishing,  other  than  mere  chastisement  and  intimida- 
tion. Where  the  necessity  of  attaining  this  end  has  not  impressed 
itself  upon  the  State,  imprisonment,  as  a  means  of  true  punish- 
ment, is  bound  to  fail.  Hence,  in  France  down  to  the  Revolu- 
tion, imprisonment  was  in  theory  a  mere  means  of  securing  the 
execution  of  the  sentence,  —  although,  to  be  sure,  it  found  at 
times  practical  employment  as  a  real  punishment.  In  this  view, 
there  was  uniform  reliance  on  the  text  of  the  Digest :  "  career 
ad  continendos  homines,  non  ad  puniendos  haberi  debet."  ^^ 
The  prisons  are  therefore  to  be  used  "  for  the  safe-keeping  of 
criminals  during  the  judicial  investigation  of  their  causes  ",  and 

*2  "Justice  criminelle",  pp.  113-115. 

■»'  [So  called  from  the  fact  that  it  was  devoted  as  an  alms  to  pious  and 
charitable  purposes.  The  particular  objects  are  spcKÜfied  in  Miiyart  dc 
Vouglnns,  "Institutes  au  droit  criminel",  pp.  41Ü,  417.  —  Tkan.sl.] 

**  See  Jousse,  "Justice  crimiiu>ll(>",  pp.  77-84. 

«  Lib.  XLVllI,  Tit.  19,  "  Dc  poMiis." 

277 


§  59e]     THE  RENASCENCE  AND  THE  REFORMATION     [Part  I,  Title  III 

cannot  be  treated  as  a  means  of  "  punishment  to  be  inflicted  by 
the  jud<]jes."  Only  individual  exceptions  appear :  the  most 
im{)ortant  are  the  commutation  of  the  punishment  of  death 
or  that  of  the  galleys  into  that  of  imprisonment  for  life,  and 
the  recognition  of  imprisonment  ("  reclusion  ")  in  a  penitentiary 
establishment  ("  maison  de  force  ")  in  the  case  of  women  and 
minors.  These,  too,  are  the  only  instances  in  which  imprisonment 
has  infamy  as  a  consequence.  But  a  true  system  of  punishment, 
based  upon  deprivation  of  liberty,  did  not  exist.''*' 

From  among  the  punishments  above  enumerated  the  public 
prosecutor  made  his  selection  in  the  individual  instance,  when 
no  penalty  had  been  expressly  appointed  by  Ordinance.  Yet, 
even  if  it  had  been  specified,  the  judge  had  the  power  to  increase 
or  diminish  "  the  legal  punishment  according  to  circumstances."  '*^ 
To  the  system  existing  by  virtue  of  such  legislative  provisions  it 
now  becomes  necessary  to  turn. 

§  59e.  The  Several  Crimes  and  their  Punishments.  —  In  this 
field  the  specific  principles  found  application.  Definitions,  the 
constituent  elements  of  crime,  extenuating  and  aggravating  cir- 
cumstances, —  these  are  all  topics  of  discussion  by  the  jurists 
of  the  period.  The  treatment  often  has  a  certain  amount  of  his- 
torical background ;  with  Ayrault  and  Duret,  however,  this  is 
chiefly  a  matter  of  reference  to  the  Roman  law,  feudal  law  being 
completely  neglected.  The  authorities  invoked  were,  first,  the 
various  Ordinances  and  the  decrees  of  the  courts,  in  particular 
those  of  the  different  Parliaments ;  secondly,  the  Roman  law  and 
the  writings  of  the  Italian  practical  jurists,  Julius  Clarus  and, 
Farinacius.  The  borrowing  from  the  last  is  in  part  direct  (this 
is  especially  the  case  with  Jousse),  and  in  part  indirect,  that  is  to 
say,  from  the  commentators  on  the  regional  Customs,  and  through 
these  from  the  French  criminalists  proper.  Responsible  as  was 
the  influence  of  Clarus  and  Farinacius  for  a  great  enhancement  of 
severity  in  punitive  measures,  the  French  law  nevertheless  remains 
indebted  to  them  in  many  particulars  for  perspicuity  and  compre- 
hensiveness. Indeed,  the  learning  devoted  to  this  part  of  the 
subject  attained  a  volume  and  precision  which  cannot  even  approxi- 
mately be  here  reproduced.^     All  that  we  can  do  is  to  lay  before 

*^  Jousse,  "Justice  criminelle",  p.  79;  Guijot,  "Repertoire",  s.v.  "Mort 
civile"  and  "Prison." 

"  Jousse,  "Justice  criminelle",  Vol.  II,  p.  593. 

*  In  Jousse's  work  the  subject  of  the  several  crimes  and  their  punish- 

278 


Chapter  X]     FRANCE,  FROM  THE  1500  s  TO  THE  REVOLUTION      [§  59e 

the  reader  a  brief  characterization  of  the  several  crimes,  — 
requiring  him  to  bear  in  mind  that  a  systematic  classification 
does  not  appear  before  the  end  of  the  1700  s  (when,  indeed,  it 
still  falls  short  of  being  a  general  one),  so  that  even  Jousse  fol- 
lows the  old  plan  of  Duret  and  enumerates  the  difl'erent  crimes 
alphabetically. 

The^r^^  group,  that  of  offenses  against  religion  and  the  church, 
by  Imbert,  and  even  at  a  later  day,  termed  "  spiritual  treason  " 
("  lese  majeste  divine"),  consists  of  the  several  crimes  now  to  be 
mentioned : 

Sacrilege  is  "  any  profanation  of  sacred  things."  It  thus  em- 
braces all  offenses  (whether  by  way  of  theft  or  not)  against  prop- 
erty dedicated  to  the  service  of  God,  and  all  crimes  committed 
in  "  holy  places."  According  to  Jousse,  the  punishment  is  dis- 
cretionary, yet  under  the  Declaration  of  1682  it  is  ordinarily 
death ;   all  accomplices  are  to  receive  the  same  sentence.- 

Heresy  comprises  a  whole  group  of  offenses  which  find  separate 
treatment.  Among  these  are  the  assembling  for  sectarian  wor- 
ships ;  the  practice  of  baptismal  rites  by  persons  other  than  priests  ; 
every  adoption  or  acceptance  of  the  "  pretended  reformed  "  reli- 
gion ;  every  relapse  to  that  religion ;  the  lending  of  aid  or  coun- 
tenance to  Protestants  in  their  beliefs ;  as  well  as  failure  to  con- 
form to  the  marriage  observances  of  the  Catholic  Church.  So, 
too,  it  was  heresy  for  Protestants  to  emigrate  from  the  Kingdom. 
By  the  Edicts  of  31  May,  1685,  and  13  September,  1699,  such 
emigrants,  together  with  all  who  aided  in  their  attempt  to  escape, 
are  to  be  sentenced  to  the  galleys  for  life.  Other  instances  of 
heresy  are  the  refusal  to  receive  spiritual  succor,  while  in  a  state 
of  illness ;  apostasy ;  adherence  to  any  schism ;  and,  finally, 
atheism.  At  first,  the  punishment  was  burning  at  the  stake; 
later,  it  was  varied  "  according  to  the  character  of  the  heresy  and 
the  accompanying  circumstances,"  although  for  this  there  was 
a  series  ^  of  legislative  enactments  ■*. 

Under  magic  and  sortilege,  four  classes  of  oft'enses  are  recog- 
nized :  witchcraft  and  sorcery  ;  pretended  foretelling  of  the  future  ; 

ments  extends  from  Vol.  TTI,  p.  212  to  Vol.  TV,  p.  322.  Our  references 
will  be  chiefly  to  this  writer,  inasmuch  as  lie  is  the  best  known. 

2  Jousse,  "Justice  criminelle",  pp.  Oö-lOCi. 

3  These  are  assembled  in  "Code  penal,  pp.  13  rt  srq.  [The  book  thus 
entitled  is  a  collection  of  the  principal  Ordinances,  Edicts,  and  Declara- 
tions touchiiif-:  crimes  and  punishments.  It  was  compiled  by  Laverdy, 
and  appeared  in  1702.     Slchi,  p.  ()04.  —  Tuansl.) 

*  Jousse,  "Justice  criminelle",  IV,  pp.  405-480. 

279 


§  r)9e]     THE  RENASCENCE  AND  THE  REFORMATION     [Part  I,  Title  III 

addiction  to  superstitious  practices;  and  the  combination  of  any 
of  these  with  impiety  and  sacrilef?e.  In  the  15()()s  and  early  lOOOs, 
beHef  in  witchcraft  and  in  "  intercourse  and  communion  with 
evil  spirits  "  still  found  acceptance,  as  appears  from  the  text  of 
Duret.^  But  the  Ordinance  of  July,  1682,  openly  declaring  all 
such  matters  to  be  "  illusions  ",  legal  opinion  accordingly  adopted 
the  more  reasonable  view  that,  although  there  were  no  "  real 
sorcerers  or  soothsayers  ",  the  practices  of  such  persons  are  never- 
theless the  subject  of  punishment,  "  either  because  of  their  impiety 
or  because  of  the  harm  that  they  work  to  others."  ^  The  punish- 
ment for  this  crime  varied  from  burning  at  the  stake  to  flogging/ 

Simony  is  the  buying  or  selling  of  "  things  spiritual."  (xrouped 
with  this  offense  is  "  confidence  ",  which  exists  where  one  enters 
upon  the  enjoyment  of  a  spiritual  or  ecclesiastical  right  and  the 
performance  of  the  duties  thereto  appurtenant,  with  intent  to 
make  over  this  right  to  another  at  a  later  day.^  The  punishment 
of  such  offenses  is  loss  of  all  benefices  vested  in  the  wrong-doer.^ 
Here  belongs,  also,  the  taking  possession  of  an  ecclesiastical  living 
by  high-handed  means,  —  which  likewise  brings  about  the  for- 
feiture of  all  benefices.^*' 

Next  come  blasphemy  and  profanity.  Blasphemy  may  be 
committed  either  by  writing  or  word  of  mouth.  It  occurs  when 
a  man  ascribes  false  attributes  to  the  Divinity,  or  denies  the  Di- 
vinity's true  attributes,  or  whenever  there  is  insult  offered  to  God, 
the  Virgin,  or  the  Saints.  The  penalties  prescribed  by  the  Ordi- 
nances are  of  many  different  sorts.  The  upshot,  however,  is  that 
simple  blasphemy  and  profanity  are  punished  with  a  discretionary 
fine,  which  is  to  be  doubled  in  case  of  a  second  oft'ense.  By  the 
Declaration  of  30  July,  1666,  the  punishment  is  increased  to  such 

5  "Traicte  des  peines  et  amendes",  p.  154  a,  b. 

'  [Cf.  the  remark  of  Seiden,  quoted  in  Professor  Thayer's  '"Trial  by- 
Jury  of  Things  Supernatural"  ("Legal  Essays",  p.  329,  Boston,  1908): 
"The  law  against  witches  does  not  prove  there  be  any,  but  it  punishes 
the  malice  of  those  people  who  use  such  means  to  take  away  men's  Uves." 
—  Transl.] 

''  Jousse,  "Justice  criminelle",  Vol.  Ill,  pp.  752-767. 

*  [Specifically  "a  'confidence'  is  a  contract  by  which  an  ecclesiastic 
receives  a  benefice  on  condition  of  paying  the  emoluments,  or  a  part  of 
them,  to  a  third  person  ;  or  covenants  to  resign  the  preferment  at  a 
specified  time.  The  person  holding  a  benefice  on  such  terms  is  called 
a  'confidentiaire. ' "  W .  H.  P.  Jervis,  "A  History  of  the  Church  of  France" 
etc..  Vol.  I,  p.  212,  note  (London,  1872),  citing  Hericourt,  "Lois  eccles.  de 
France",  F.  c.  XX,  28,  29;  "Memoires  du  clerge  de  France",  Vol.  VIII, 
p.  8.  —  Transl.] 

^Jousse,  "Justice  criminelle",  IV,  pp.  110-118. 

1"  Laverdy,  "Code  penal",  pp.  14,  15. 

280 


Chapter  X]     FRANCE,  FROM  THE  1500  s  TO  THE  REVOLUTION     [§  59e 

an  extent  that  for  the  eighth  repetition  the  offender  suffers  the  loss 
of  his  tongue.^^ 

Disorderly  behavior  during  divine  service  receives  discretionary 
])unishment.  At  such  a  time,  too,  all  taverns  and  shops  must 
be  kept  closed,  or  the  keeper  will  feel  the  hand  of  the  law.^'- 

A  second  principal  group  is  formed  by  the  crimes  of  temporal 
treason  ("lese  majeste  humaine  ").  The  evolution  of  this 
notion  of  "  lese  majeste  ",  better  than  almost  anything  else, 
enables  us  to  recognize  the  development  which  had  been  going 
on  in  the  idea  of  the  State.  Since  the  1500  s,  it  had  become  clear 
to  legal  science  that,  although  the  Prince  represents  the  State, 
the  State  is  in  no  sense  merged  in  the  Prince.  Thus  arose  the  new 
conception  of  temporal  "lese  majeste  "  —  a  conception  which, 
throughout  this  vvhole  period,  preserved  the  same  character  and 
became  clearer  only  in  respect  of  the  systematization  that  it  under- 
went. Duret  placed  under  this  head  all  evil-intentioned  deeds 
which  are  directed  against  the  Prince,  his  councillors,  or  his  gendar- 
merie, or  which  create  public  disturbances,  injure  the  State,  betray 
it,  or  set  on  foot  conspiracies.'^  The  efforts  of  later  writers  bring 
order  out  of  this  notional  chaos.  A  distinction  is  taken  between 
temporal  "  lese  majeste  "  in  the  first  and  in  the  second  degrees, 
—  which  is  substantially  that  between  "  lese  majeste  "  proper 
and  high  treason.  Temporal  "  lese  majeste  "  in  the  first  degree 
embraces  every  attempt  upon  the  person  of  the  Prince,  his  chil- 
dren, or  those  in  the  line  of  succession  to  his  throne,  and  every 
attack  upon  the  State  whether  by  overt  act  or  by  secret  "  leagues 
or  associations."  This  offense  is  "  one  of  the  most  atrocious  that 
can  be  committed,"  because  Sovereigns  are  "  the  images  of  Clod, 
representing  in  the  governance  of  their  several  States  that  authority 
which  is  exercised  by  God  in  the  governance  of  the  Universe."  '' 
"  Lese  majeste  "  in  the  second  degree  (or,  as  Jousse  has  it,  in  the 
lesser  degrees)  comprises  all  offenses  "  which  cause  prejudice  or 
damage  to  the  public  weal ",  or  "  the  King's  authority",  "  inter- 
fere with  the  due  execution  of  public  justice",  or  injure  the  sover- 
eign rights  of  the  Kingdom,  and  all  offenses  directed  against 
"  the  persons  or  the  functions  of  magistrates  or  other  persons  who 
represent  the  Sovereign  ",  such  as  foreign  ambassadors.     Thus, 

"  Jousse,  "Justice  criminelle",  111,  pp.  260-272. 
"  Lavcrdy,  "Code  penal",  pp.  12-14. 
''  "Traicte  des  poincs  ot  aiiu'iidcs",  pp.  106  et  seq. 
^  ^*  Jousse,  "Justice  criminelle".  Ill,  p.  681. 

281 


§  r)9e]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

all  officiiildoin  is  included  in  the  notion  of  the  State,  and  all  crimes 
conniiitted  within  this  circle  or  against  any  member  of  it  share 
the  same  common  character.     Specifically  these  crimes  are  : 

"  Lese  majeste  "  proper;  that  is  to  say,  attempt  upon  the  life 
of  the  Prince,  or  of  any  member  of  the  princely  house.  Extraordi- 
nary punishment  is  provided  for  this  crime  by  the  Ordinance  of 
1539.  The  offender  is  to  be  plucked  with  red-hot  pincers  and, 
after  boiling  lead  has  been  poured  into  his  wounds,  is  to  be  torn 
asunder  by  horses ;  ^^  his  house  is  to  be  razed  to  the  ground  and 
his  estate  confiscated.  Under  the  Criminal  Ordinance  of  1070/^ 
there  is  even  a  criminal  proceeding  against  his  corpse.^^  All  other 
species  of  "  lese  majeste  "  in  the  first  degree  are  followed  by  con- 
fiscation, the  razing  of  the  offender's  dwelling,  and  death ;  even 
guilty  knowledge  is  visited  with  the  like  punishraent.^^  On  a  par 
with  the  offense  in  question,  according  to  the  view  of  Jousse,  is 
every  species  of  rebellion,  but  here  the  death  penalty  is  inflicted 
in  a  less  aggravated  form. 

High  treason ;  which  includes  every  resistance  to  the  royal 
command,  every  insult  to  the  King,  every  appeal  from  the  King 
to  the  Emperor,^^  or  to  the  Pope,  the  assembling  with  w^eapons  or 
followers  in  derogation  of  the  royal  authority,  the  fortifying  of 
castles,  and  a  large  number  of  kindred  acts.  In  serious  cases 
the  punishment  usually  is  "  confiscation  of  the  body  and  estate  " ; 
in  other  instances  its  extent  depends  upon  the  circumstances  of 
the  particular  offense.^'' 

Under  this  head  of  high  treason,  also  fall,  for  the  reason  assigned, 
certain  specific  crimes  of  a  different  description,  namely : 

Counterfeiting  of  money.  —  Two  principal  species  are  recog- 
nized :  counterfeiting  of  money,  proper,  and  "  billonage."  The 
former  consists  of  unauthorized  coining,  coining  with  false  weight 
and  standard,  imitation  or  counterfeiting  of  inscriptions,  clipping 
coin,  or  uttering  false  money.  "  Billonage  "  is  the  melting  down 
of  good  coin  or  in  any  other  manner  converting  it  into  bullion  or, 
exporting  coined  money  from  the  realm. -^     For  any  sort  of  coun- 

'^  [This  was  the  manner  of  death  inflicted,  in  1610,  upon  Ravaillae, 
"who  assassinated  Henry  IV,  and,  as  late  as  1757,  upon  Damiens  for 
attempting  the  life  of  Louis  XV.  —  Transl.] 

'«  Tit.  XXII,  Art.  1. 

'^  For  examples,  see  Jousse,  "Justice  criminelle",  p.  G83. 

'*  Jousse,  op.  CÜ.,  Ill,  pp.  674—705. 

»9  Decree  (2)  of  1417,  in  Papon's  coUection,  LXII,  Vol.  I. 

-°  Jousse,  op.  cit.,  pp.  689  et  seq.,  pp.  454—456. 

=1  Declaration  of  24  October,  1711 ;  Edicts  of  May  1718  and  February, 
1726. 

282 


Chapter  X]      FRANCE,  FROM  THE  1500  S  TO  THE  REVOLUTION     [§  59e 

terfeiting  of  money,  even  for  the  act  of  uttering  false  coin,  the 
penalty  is  death." 

Counterfeiting  of  the  royal  letters  or  seal.^ 

Peculation :  that  is  to  say,  the  embezzlement  of  royal  or  public 
moneys,  or  the  use  of  such  moneys  for  one's  own  benefit  "  through 
an  infinity  of  evil  artifices  contrived  by  the  financiers  to  enrich 
themselves  at  the  expense  of  the  King  and  the  public."  The 
punishment  is  consignment  to  the  galleys  for  life,  but,  in  the  course 
of  time,  this  has  come  to  be  seldom  applied,  and  the  court  uses  a 
discretionary  power  in  fixing  the  penalty.-^ 

Extortion  and  malversation  in  office.  —  In  this  case,  likewise, 
the  practice  is  to  modify  the  punishment  according  to  circum- 
stances. By  the  Ordinances  of  ]Moulins  -'"  and  of  Blois,-^  extortion 
by  officials  was  punishable  with  "  confiscation  of  body  and  estate," 
yet  the  death  penalty  is  scarcely  ever  inflicted,  —  giving  way  to 
banishment  coupled  with  one  of  the  infamous  punishments.-^ 

Duress  of  imprisonment  ("  chartre  privee  ")  which  exists  where 
a  private  person,  with  strong  hand,  deprives  another  of  liberty. 
It  is  numbered  among  attacks  upon  the  sovereign  rights  of  the 
State,  under  "  lese  majeste."  The  principal  doctrinal  source  is 
the  Roman  Code.^^  The  punishment  is  a  matter  of  judicial  dis- 
cretion, but  based  on  Farinacius.^^ 

Obstruction  of  public  justice  ("  rebellion  ä  justice  ")  :  This 
occurs  through  any  resistance  to  the  exercise  of  the  judicial  power, 
or  concealment  of  criminals.  An  associated  offense  is  that  of 
prison  breaking.  In  spite  of  the  provisions  of  the  Criminal  Ordi- 
nance,^" escape  from  prison  is  seldom  punished  except  when  accom- 
panied by  the  use  of  violence  or  the  commission  of  some  other 
crime.  The  turnkey  who  affords  a  prisoner  the  means  of  escape 
incurs  consignment  to  the  galleys.  In  other  cases  there  is  a  fine 
and,  at  times,  heavier  punishment.^^ 

Duelling.  —  By  the  opening  of  the  1500  s,  the  duel  liatl  com- 
pletely fallen  into  disuse  as  a  procedural  feature.  In  the  period 
with  which  we  are  dealing,  it  is  not  only  discountenanced,  but  for- 

22  Jousse,  op.  cit.,  II,  pp.  452-454. 

23  Ibid.,  Ill,  pp.  373,  374. 
2*  Ibid.,  IV,  pp.  21-38. 

2s  Art.  23. 

2«  Art.  280. 

2'  Jousse,  op.  cit.,  Ill,  pp.  767-810. 

28  Lib.  IX,  Tit.  5,  "De  privatis  carceribus." 

29  Questio  27,  n.  35:    Jousse,  op.  cit.,  Ill,  pp.  283-286. 
'»  Tit.  XVII,  Art.  25. 

''  Jousse,  op.  cit.,  IV,  p.  95. 

283 


§  51)t']      THE  RENASCENCE  AND  THE  REFORMATION      [Pakt  I,  Title  III 

bidden  uikUt  rigorous  penalties.  Indeed,  the  liatred  vvhieli  the 
Frenc'li  kings  disi)layed  toward  this  one-time  institution  is  quite 
remarkable.  The  last  instance  of  a  formally  sanctioned  duel 
was  that  between  the  Lords  de  Chataigneraie  and  de  Jarnac,  in 
the  presence  of  Francis  I.^-  In  the  combat,  de  Jarnac,  a  favorite 
of  the  then  Dauphin  (afterwards  Henry  II)  lost  his  life ;  his  death 
so  affected  the  Dauphin  that  when  the  latter  came  to  the  throne 
he  vowed  that  never  again  would  a  duel  be  permitted  in  his  King- 
dom. At  a  later  day,  Louis  XIV  swore  by  his  kingly  honor,  and 
publicly  declared  in  the  two  Edicts  of  1651  ^^  and  1G79/*  that  the 
offense  of  duelling  was  beyond  the  hope  of  pardon  —  a  declara- 
tion repeated  by  Louis  XV  in  the  Edict  of  February,  1723.  The 
attitude  thus  adopted  by  the  monarchs  had  necessarily  a  great 
influence  upon  legal  opinion.  Jousse  says  that  duelling  is  "  more 
criminal  than  homicide  ",  and  the  Ordinance  of  1679  classed  it  as 
a  species  of  "  leze  majeste."  For  these  reasons  the  details  of  the 
offense  are  a  matter  of  close  study.  Distinction  is  made  between 
challenge  without  combat  and  the  consummated  duel.  Sending 
a  challenge  is  punishable  with  two  years'  imprisonment,  a  heavy 
fine  (to  be  paid  to  the  nearest  hospice),  and  suspension  from  all 
offices  for  a  period  of  three  years,  —  subject  to  increase  according 
to  circumstances.  The  same  consequences  attend  acceptance  of 
a  challenge.  In  the  case  of  a  consummated  duel,  the  punish- 
ment of  both  parties  is  death  "  without  remission  ",  and  this 
regardless  of  their  wounds.  Nor  does  death  in  the  combat  stay 
the  action  of  the  penal  law.  Here  there  is  judicial  condemnation 
of  the  decedent's  memory,  and  confiscation  of  his  estate,  or,  where 
that  is  not  possible  under  the  local  rule,  two-thirds  of  the  estate  is 
taken,  by  way  of  fine,  for  pious  uses.  All  who  participate  are 
visited  with  severe  punishment.  He  who  delivers  the  challenge 
incurs  flogging  and  branding,  and,  upon  a  second  offense,  consign- 
ment to  the  galleys  for  life ;  the  mere  looker-on  loses  all  his  offices 
and  dignities,  or  else  the  fourth  part  of  his  property.  One  good 
eft'ect  of  this  unreasonable  severity  was  that  it  occasioned  the 
establishment  of  Courts  of  Honor.  By  the  Edict  of  August, 
1679,^^  as  judges  of  honor  were  appointed  the  ]\Iarshals  of  France, 

^  [In  his  consummate  study  of  the  duel  in  France,  Alexander  Coulin 
makes  it  clear  that  the  royally  authorized  duel  of  the  1400  s  and  early 
1500  s,  such  as  the  one  here  mentioned,  was  quite  other  than  the  old  trial 
by  battle.  "Verfall  des  offiziellen  imd  Entstehung  des  privaten  Zwei- 
kampfes in  Frankreich",  p.  138  (Gierke's  "Untersuchungen  zur  deutschen 
Staats-  und  Rechtsgesehichte",  99  Heft).  —  Transl.) 

33  Art.  24.  34  Art.  36.  »^  Art.  2. 

284 


wcre^ 


Chapter  X]     FRANCE,  FROM  THE  1500«  TO  THE  REVOLUTION      [§  ö9e 

the  Governors-General  and  tlieir  Lieutenants.  These,  again, 
were  authorized  to  appoint  a  certain  nund)er  of  nobles,  in  every 
province,  as  arbitrators,  with  jurisdiction  to  determine  questions 
of  personal  honor  and,  incidentally,  to  cite  before  them  the  con- 
tending parties.  From  the  decisions  of  such  local  tribunals,  an 
appeal  lay  to  the  Marshals.^^ 

The  unlawful  carrying  of  arms  and  the  wearing  of  masks 
forbidden  by  the  Ordinance  of  14N7  —  a  prohibition  which  is  often 
repeated.  The  Ordinance  of  9  May,  1539,  allowed  the  populace 
to  overpower  and  kill  ("  courir  sus  ")  the  offender,  but  by  that 
of  5  August,  1560,  imprisonment  and  the  loss  of  weapons 
were  prescribed.  Later,  both  cases  are  treated  as  mere  police 
offenses.^'^ 

Crimes  against  the  person  constitute  the  third  main  class. 

Homicide  in  general  ("  homicide  ")  is  grouped  under  four  heads  : 
(a)  justihable  homicide  ("  homicide  par  necessite  ")  ;  (6)  acci- 
dental homicide ;  (c)  homicide  by  negligence,  and  (d)  murder 
("homicide  volontaire  ",  "  meurtre  ",  "  assassinat  ").  The  kill- 
ing of  an  adulterer  is  not  punishable.  Where  there  has  been  a 
wounding,  the  case  is  one  of  homicide  if  death  ensues  within  forty 
days.  Attempt  to  kill,  in  general,  is  not  punished  as  severely  as 
the  consummated  offense.  It  is  only  the  proximate  attempt, 
conspiracy  to  kill  ("  machination  de  tuer  "),  the  hiring  of  an  assas- 
sin, and  instigation  of  another  to  commit  homicide,  which  are 
visited  with  the  death  penalty.  Self-defense  is  discussed  quite 
fully.  But  the  learning  of  homicide  is  without  anything  dis- 
tinctive :  on  principle,  it  is  based  upon  Farinacius.  The  punish- 
ment for  murder  is  breaking  on  the  wheel ;  more  exact  determina- 
tion is  left  to  the  courts.'"'^ 

Poisoning  ("  crime  de  poison  ")  is  dealt  with  as  a  separate 
offense,  and  is  more  serious  than  ordinary  murder.  Its  punish- 
ment is  death  in  an  aggravated  form,  varying  with  the  circum- 
stances of  the  case.^^ 

Parricide  is  murder  committed  upon  the  person  of  a  relati\e,  — 
even  upon  that  of  a  natural  ascendant  or  descendant,  or  of  a 
relative  by  marriage.  In  a  wider  sense,  it  includes  infanticide, 
concealment  of  pregnancy,  and  exposure  of  children,  as  also 
the  murder  of  the  master  of  the  house  by  his  servant.  The 
notions   here  involved    are   the   connnon  ones   of   the    17()0s, — 

36  Jousse,  op.  cit..  Ill,  pp.  320-328.  "  Il>i,l.,  IV,  pp.  nO-OT. 

38  Ibid.,  Ill,  pp.  480-565.  39  /^jV/.,  IV,  pp.  41-45. 

285 


§  59e]     THE  RENASCENCE  AND  THE  REFORMATION     [Part  I,  Title  III 

})ase(l  upon  the  Italian  practical  jurists,  —  and  hence  need  not 
further  detain  us/'^ 

Suicide  is  still  a  crime.  The  estate  is  to  be  confiscated  and  a 
criminal  proceeding?  had  against  the  corpse.  These  rules,  how- 
ever, become  greatly  modified  in  practice.^^ 

Crimes  against  marriage,  i.e.  adultery  and  bigamy,  likewise  pre- 
sent a  situation  where  the  punishment  is  governed  by  a  general 
practice.  The  chief  doctrinal  sources,  as  to  adultery,  are  the 
134th  Novel,  c.  10  and  the  Authentica  "  Sed  hodie  ^^  Codicis  ad 
legem  Juliam  de  adulteriis."  The  woman  who  offends  is  "  au- 
thenticated ",''^  i.e.  is  immured  in  a  cloister,  and  loses  her  property 
rights.  The  man  is  punished  in  different  ways,  —  sometimes  by 
death,  but  latterly  at  the  discretion  of  the  judge.^  Similar  con- 
siderations apply  to  bigamy  and  polygamy,  in  default  of  special 
laws.^'' 

For  the  several  forms  of  the  crime  against  nature  the  punish- 
ment is  burning  at  the  stake.^^ 

Of  the  oflFenses  grouped  under  the  designation  of  carnality 
("  luxure  "),  rape  is  punished  with  death,  as  is  also  carnal  connec- 
tion with  a  female  child.  In  other  cases,  resort  is  had  to  some 
severe  penalty  of  a  different  description,  although  death  is  usually 
specified  in  the  prosecutor's  demand.^'^ 

Pandering  is  attended  with  banishment,  loss  of  the  ears,  whip- 
ping, and  the  like.     Later,  banishment  comes  into  general  use.^^ 

Incest  comprises  every  case  of  sexual  intercourse  between 
kindred,  as  far  as  the  degree  of  aunt  and  nephew.  It  does  not, 
however,  cover  commerce  between  persons  who  are  akin  only  by 

"  Jousse,  op.  CiL,  III,  pp.  248-254 ;    IV,  pp.  1-26. 

^1  Ihid.,  IV,  pp.  130-142. 

*^  [In  the  first  nine  books  of  the  Code,  the  Glossators  inserted  "extracts 
from  the  Novels  which  completed  or  modified  a  considerable  number  of 
constitutions.  These  extracts  were  called  'Authenticae',  in  contradis- 
tinction to  the  collection  of  Novels  in  nine  collations  called  'Authenti- 
cum'  or  'Corpus  authenticorum.' "  Tardif,  "Histoire  des  sources  du 
droit  frangais",  p.  121  (Paris,  1890)  ;  and  see  also  Vol.  I  of  the  present 
Series:  "A  General  Survey  of  Events,  Sources,  Persons,  and  ]Movemeuts 
in  Continental  Legal  History",  p.  136. 

The  Authentica  "Sed  hodie"  is  so  called  from  the  opening  words  of 
the  first  sentence:  ''Sed  hodie  adultera  verberata  in  monasterium  mitta- 
tur ;  quam  intra  biennium  viro  recipere  licet."  Corp.  Jur.  Can.,  ed. 
Beck,  Code,  Lib.  IX,  Tit.  9,  XXX  (Leipzig,  1831).  —  Transl.] 

*'  ["Authentiquee"  :  signifying  that  there  is  applied  to  her  the  punish- 
ment of  the  "Authentica."  Dupin  and  Laboidaye,  "Glossaire  de  I'ancien 
droit  fran^ais",  s.v.  "Authentique"  (Paris,  1846).  —  Traxsl.] 

"  Jousse,  op.  cit..  Ill,  pp.  212-248. 

«  Ibid.,  IV,  pp.  51-56.  «  /ftj,/.^  IV,  pp.  118-125. 

"  Ihid.,  Ill,  pp.  705-752.  "  Ibid.,  Ill,  pp.  810-817. 

286 


Chapter  X]      FRANCE,  FROM  THE  1500  S  TO  THE  REVOLUTION      [§  Ö9e 

virtue  of  the  sponsorship  relation,  as  in  the  case  of  godfather 
and  god-daughter.  There  is  no  express  legislative  provision  as  to 
the  punishment ;  this  is  graduated  to  the  closeness  of  the  rela- 
tionship, and  is  either  death  or  one  of  the  infamous  punishments.^^ 

Among  crimes  against  property,  we  encounter,  first  of  all,  that 
of  arson  ("  incendie  ").  Its  punishment  is  arbitrary,  and  varies 
with  the  circumstances.  Burning  at  the  stake  is  the  penalty  where 
loss  of  life  has  been  occasioned.  Lesser  punishments  are  employed 
where  only  property  had  been  destroyed.^" 

Next  follows  theft  ("  vol  "),  which  is  "  every  fraudulent  abstrac- 
tion and  carrying  away  of  the  goods  of  another,  with  intent  to 
convert  them  to  the  taker's  use."  Difi'erentiation  as  to  kind  is 
solely  by  reference  to  the  "  circumstances  which  render  the  theft 
more  or  less  grave."  These  are  (a)  the  character  of  the  offender 
(e.g.  theft  by  a  domestic) ;  (6)  the  place  of  commission  (highway 
robbery ;  theft  in  a  public  place  or  during  a  conflagration)  ;  (c) 
the  time  of  commission  (theft  in  the  night-time) ;  (d)  the  manner 
of  commission  (theft  by  breaking  and  entering,  by  the  display  of 
weapons,  or  by  violence)  ;  (e)  the  nature  of  the  thing  stolen 
(property  dedicated  to  sacred  uses,  horses,  cattle,  and  other  graz- 
ing animals,  wagons,  etc.)  ;  (/)  its  quantity  or  amount  (grand  and 
petty  larceny,  the  definition  of  which  is  different  by  different 
regional  customs) ;  and  (g)  repetition  of  theft.  As  to  the  last,  it 
is  to  be  observed  that  the  rule  making  the  third  theft  by  the  same 
individual  a  distinctive  species  has  been  naturalized  from  the 
Charles  V's  German  "  Constitutio  Carolina  "  and  from  Farinacius. 
The  punishment  of  theft  is  of  many  sorts.  This  is  due  to  the  lack 
of  general  legislation,  and  also  to  the  fact  that  a  number  of  the 
regional  customs  had  their  own  provisions  on  the  subject,  which 
have  become  elaborated  by  the  judicial  law.  With  his  practical 
bent,  Jousse  has  thrown  light  upon  almost  all  the  possible  cases.'^ 

Quite  as  extensive  a  field  is  covered  by  falsification  ("  faux  ") 
—  a  term  used  to  designate  both  forgery  and  crimes  of  fraud. 
Falsification  embraces  "  every  act  calculated  to  destroy,  inii)air, 
or  obscure  the  truth,  to  the  prejudice  of  another  and  with  intent 
to  deceive  him."  A  first  class  consists  of  falsification  in  the  exer- 
cise of  a  public  function,  for  which  the  punishment  may  be  any- 
thing from  the  death  penalty  down,  in  the  discretion  of  the  court. 

*^  Jntisse,  np.  ril..  Ill,  pp.  561-573. 
60  Ibid.,  HI,  pp.  ()r)S-()()(). 
"  iiifi^^  IV,  pp.  1()()-2Ü7. 

287 


§59e]     THE  RENASCENCE  AND  THE  REFORMATION      [Pakt  I,  Title  1 1 1 

rrivutf  I'ulsiHcatioii  includes  the  forgery  of  documents  and  fal- 
sification generally  by  word  or  act  (wherein  is  embraced  the  giving 
of  false  weight  or  false  measure).  Its  punishment  is,  in  part, 
according  to  the  customary  law,  in  part,  discretionary ;  and  con- 
sists of  fine,  banishment,  or  corporal  chastisement,^^ 

Perjury  (false  witness)  is  the  subject  of  especial  punishment. 
According  to  the  Ordinance  of  1531,  the  death  penalty  is  to  be 
applied.  In  practice,  however,  a  modification  of  this  rule  had 
come  about,  and  the  punishment  was  in  the  discretion  of  the  court. 
False  witness  against  the  accused  in  a  criminal  proceeding  called 
for  a  severer  penalty,  and  was  visited  with  the  punishment  to 
whicli  the  person  falsely  accused  had  become  liable. '^^ 

Fraudulent  bankruptcy  is  treated  by  Jousse  as  a  species  of 
theft.  By  the  Ordinance  of  10  October,  1536,  bankruptcy,  when 
accompanied  by  fraud  and  wrong-doing  ("  fraudes  et  abus  "),  was 
made  punishable  by  "  amende  honorable  ",  corporal  chastisement, 
the  "  carcan  ",  and  the  like,  according  to  the  nature  of  the  offense. 
Severer  measures  were  prescribed  by  the  Ordinance  of  Orleans  "^ 
and  Blois ;  ^^  and  an  Edict  of  1609  appointed  the  death  penalty. 
Although  this  last  provision  was  repeated  in  the  Ordinance  of 
Commerce  ^^  (1673)  and  in  a  Declaration  of  1716,  it  was  not 
observed  in  practice ;  the  provisions  of  the  Ordinance  of  1536, 
however,  remained  in  force.  Accomplices  incurred  a  fine,  in 
certain  cases  a  corporal  chastisement.'^^ 

Usury,  i.e.  "  any  illicit  gain  derived  from  money  in  virtue 
of  a  prior  agreement,"  still  remained  a  crime.  Nevertheless,  a 
distinction  was  made  between  usury  and  interest.  The  exac- 
tion of  a  lawful  rate  of  interest  was  permitted ;  this,  under  the 
Ordinance  of  February,  1770,  being  fixed  at  5  per  cent.  ("  au 
denier  vingt  ").^^  The  various  questions  are  dealt  with  by 
Jousse  in  considerable  detail.     By  the  Ordinance  of  Orleans,  the 

^-  For  the  particular  cases,  see  Jousse,  op.  cit.,  Ill,  pp.  341-416,  where 
they  are  exhaustively  considered. 

^^  Jousse,  op.  cit.,'lU,  pp.  411-442.  "  Art.  142. 

55  Art.  245.  56  Tit.  XI,  Art.  12. 

"  Jousse,  op.  CiL,  III,  pp.  254-200. 

5ä  It  is  interesting  to  note  the  steady  decline  of  this  legal  rate.  By 
the  Ordinance  of  1254,  it  was  fixed  at  4  sols  on  the  livre  (20  per  cent.) ; 
by  that  of  July,  1315,  at  15  per  cent.  It  later  became  10  per  cent,  ("au 
denier  10"),  and  so  remained  until  1507.  Its  subsequent  course  was  as 
follows:  6y  per  cent,  ("au  denier  16")  by  the  Edict  of  July,  1601;  5^ 
per  cent  ("au  denier  18")  by  the  Edict  of  March,  1634;  5  per  cent,  ("au 
denier  20")  by  the  Edict  of  December,  1665  ;  and  4  per  cent,  ("au  denier 
25")  by  the  Edict  of  June,  1766.     See  Jousse,  op.  cit.,  p.  269. 

288 


Chapter  X]     FRANCE,  FROM  THE  1500  S  TO  THE  REVOLUTION     [§  Ö9e 

punishment  of  usury  was  corporal  chastisement  and  confiscation 
of  property  —  a  provision  frequently  reenacted,  but  mitigated  in 
practice. ^^ 

The  last  division  (and  one  of  a  subsidiary  character)  is  that 
of  insults.  Here  was  included  every  species  of  insulting  language 
or  conduct,  in  general,  and,  in  particular,  "  every  offense  which 
a  man  occasions  to  his  neighbor  through  a  contumelious  motive  " 
("motif  de  mepris  ").  The  latter  is  of  three  sorts:  insult  by 
word  of  mouth,  insult  by  writing,  and  insult  by  conduct.  In  the 
case  of  oral  insults,  a  retraction  is  required,  and  the  offender  is 
often  compelled  formally  and  publicly  to  vindicate  the  honor  of 
the  insulted  person,  either  by  lodging  a  document  in  the  judicial 
record-office,  or  by  appearing  in  open  court,  with  uncovered  head, 
and  there  making  oral  acknowledgment  of  his  wrong-doing.  If 
the  insult  is  offered  by  a  person  of  low  degree  to  one  of  higher, 
then,  in  addition,  the  culprit  is  condemned  to  imprisonment  or 
such  other  punishment  as  the  judge  shall  determine.  In  other 
instances,  there  is  a  fine  in  the  nature  of  a  judgment  for  ci\il 
damages  in  favor  of  the  injured  person ;  in  others  again,  a  penal 
fine ;  and,  in  very  serious  cases,  even  infamous  punishments,  such 
as  "  amende  honorable  "  and  banishment.  As  to  insults  by  writ- 
ing, the  law  is  the  same,  except  that  the  defamatory  libel  is  sup- 
pressed, or  is  torn  up  in  public.  For  every  sort  of  insult  by  con- 
duct ("  real  "  insults)  the  penalty  depends  upon  the  circumstances, 
the  extent  of  the  injury,  the  person  injured,  the  place,  or  the  nature 
of  the  act,  and  varies  from  mere  public  censure  {"  blame  ")  to 
"  afflictive  "  and  infamous  punishments.  There  is,  besides,  an 
award  of  damages  to  the  injured  person.  The  different  cases 
are  gone  into  quite  fully  by  Jousse.*^^  It  is  to  be  noted  that  he 
includes  arson  and  "  violatio  sepulchri  "  under  the  present  head. 
Especial  mention  is  deserved  for  defamatory  libels  and  the  enact- 
ments relating  to  offenses  of  the  press.  Printing,  ])ublication,  or 
sale  of  matter  amounting  to  a  defamatory  libel  was  forbidden  by 
the  Ordinance  of  17  January,  lOöl,  and  many  subsequent  enact- 
ments, under  penalty  of  whipping  and,  in  case  of  repetition,  death. 
For  falsely  stating  the  place  of  publication,  as  well  as  for  printing 
in  foreign  countries,  the  Ordinance  of  10  September,  1572, •'^  pre- 
scribed confiscation  of  the  book  and  a  fine  to  be  fixed  at  the  court's 

59  Jmisse,  op.  ell.,  IV.  pp.  2G7-284. 
6«  Op.  cit..  Ill,  pp.  573-671. 
"1  Art.  10. 

289 


§  5i)(J     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Trn.E  III 

discretion.  Tlie  Ordinance  of  Moulins  •"'-  prohil)ited  the  publica- 
tion of  any  book  without  permission  of  the  Crown  ("sans  privi- 
lege du  Roi  "),  punishing  infractions  with  confiscation  of  property 
and  corporal  chastisement;  and,  by  the  Ordinance  of  11  Decem- 
ber, 1547,  no  book  dealing  with  religious  matters  could  be  printed 
or  sold  unless  first  examined  and  authorized  by  the  doctors  of 
theology,  the  punishment  in  this  case  being  confiscation  of  "  body 
and  estate."  The  Press  Law  proper  is  the  Edict  of  August,  1GS(3, 
which  consolidated  all  the  preceding  enactments.  Later  enact- 
ments merely  carry  out  the  plan  there  laid  down.  Thus,  the  Regu- 
lation of  28  February,  1723,  provided  that  any  one  guilty  of  cir- 
culating writings  against  religion,  the  King's  service,  the  good  of 
the  State,  the  purity  of  manners,  or  the  honor  and  reputation  of 
families  or  individuals  should  (in  addition  to  the  punishments 
prescribed  by  existing  law)  incur  the  forfeiture  of  all  privileges, 
rights,  and  offices.  So,  too,  the  Declaration  of  10  IMay,  1728, 
punished  the  same  offense  with  the  pillory,  banishment,  and 
severer  punishments.  Likewise,  by  a  Declaration  of  17  April, 
1757,  it  was  enacted  that  the  author  of  any  writing  "  tending  to 
give  offense  to  religion,  to  agitate  the  minds  of  the  people,  to 
assail  the  authority  of  the  King,  or  to  disturb  the  peace  of  the 
State  will  be  punished  with  death  " ;  ^^  further,  that  all  who  take 
part  in  its  printing,  publishing,  or  dissemination  are  to  undergo 
the  like  punishment ;  ^^  and,  finally,  that  failure  to  observe  the 
formalities  indicated  in  the  Ordinances  shall  entail  a  punishment 
which  may  extend  to  consignment  to  the  galleys  for  life.^^  And 
Jousse  does  not  hesitate  to  add  that  all  who  have  authorized  or 
counselled  the  publication  must  be  punished  in  the  self-same 
manner.^^ 

This  concludes  the  list  of  crimes  in  the  true  sense  of  the  word. 
There  were  many  other  offenses  of  a  special  nature  such  as  those 
relating  to  the  forests,  to  hunting,  and  to  fishing,  as  w^ell  as  an 
entire  group  of  marine  oft'enses  which  are  dealt  with  in  the  Ordi- 
nance of  the  Marine.  Examination  of  these,  however,  would 
throw  but  little  light  on  the  general  features  of  the  criminal  law 
of  this  period,  and,  consequently,  does  not  require  us  to  prolong 
this  survey. 

«2  Art.  78.  ^  Art.  1.  «  Art.  2.  ««  Art.  3. 

^^  Op.  cit..  Ill,  pp.  651,  el  seq. 


290 


Chapter   XI 

OTHER  COUNTRIES   IN   THE    löOOs-lTOüs 

(Scandinavia,  Switzerland,  Netherlands) 

A.  Scandinavia 


§  59/.  Scandinavia  in  the  period 
1500  s -1700  s.  Private 
Revenge  Prohibited ; 
Outlawry ;  Penalties ; 
Legislation     during     the 


1600  s;  ^  Capital  Of- 
fenses ;  Extension  of  Pub- 
lie  Jurisdiction ;  Moral 
Conditions. 


§59/.  Scandinavia  during  the  period  1500  s-1 700  s. —  The 
1500  s.  The  legislation  of  the  first  half  of  the  1500  s  exhibits  an 
increasing  progress  in  penal  law  to  the  conception  that  the  end  to 
be  sought  was  not  the  securing  of  private  redress  and  damages 
so  much  as  the  maintenance  of  public  order  and  safety.  The 
system,  however,  was  not  essentially  changed.  More  severe 
penalties  were  prescribed  for  di\'ers  ofienses  with  a  \iew  of  enforc- 
ing more  effectively  the  duty  resting  upon  the  public  authorities. 
The  reason  set  forth  for  these  drastic  enactments  was  the  lawless 
conditions  prevailing  during  the  internal  strifes  and  wars;  and 
the  crimes  especially  dealt  with  were  murder  and  gross  personal 
violence,  which  frequently  passed  unpunished. 

Private  Vengeance  Prohibited.  —  It  is  apparent,  however,  that 
the  basic  principles  of  the  earlier  provincial  Laws  remain.  The 
system  of  fines,  which  had  grown  out  of  the  ancient  custom  of  tak- 
ing the  law  into  one's  own  hands,  was  preserved.  Personal  feud 
and  vengeance,  while  not  allowed,  still  served  to  distinguisli  such 
an  act  from  one  committed  on  an  ofVenseless  man,  and  subjected 
the  doer  to  outlawry  or  forfeiture  of  life  in  excejitional  cases  only. 

i[The  first  four  headings  of  this  Section  continue  Stemann'.s  "  History." 
etc.,  already  cited  in  note  1  to  §39«;  for  this  author,  see  tlie  Editorial 
Preface.  —  Ed.] 

291 


§  59/]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  HI 

The  Laws  of  Christian  II  pcnaHzcd  witli  death  all  cases  of  de- 
liherate  homicide  ;  if  the  defendant  eseaj)ed,  he  and  his  companions 
in  the  act  were  outlawed ;  any  one  of  them,  if  apprehended,  was  to 
be  executed  by  the  royal  official ;  but  any  one  could  slay  him  with 
impunity ;  to  harbor  him  was  cause  for  outlawry.  For  the 
taking  of  life  by  accident  or  in  self-defense,  peace  must  be  bought  by 
fines  to  the  kin  and  the  king ;  the  amounts  w^ere  to  be  determined 
by  the  "  Land-judge  "  and  were  exacted  from  the  defendant  him- 
self, his  kindred  not  being  bound  to  contribute ;  attacks  upon  the 
latter  by  the  kinsfolk  of  the  deceased  were  prohibited. 

These  general  rules  were  followed  by  succeeding  kings.  No 
new  penal  principle  developed ;  the  chief  aim  being  more  effec- 
tually to  enforce  the  rules  of  the  earlier  codes.  This  is  seen  in  the 
Ordinance  of  Frederick  I  for  Fyen,  of  May  18,  1523,  and  the  Decree 
of  Christian  III  for  Kopenhagen,  of  1537,  which  attribute  the 
frequent  cases  of  murder  to  the  practice  of  private  vengeance,  as 
well  as  to  the  custom  for  the  slayer  to  obtain  release  by  paying 
fines  to  the  kin  of  the  deceased  (to  which  his  relations  contributed) 
without  the  cause  reaching  the  law's  tribunal.  The  chief  purpose 
of  these  enactments,  as  well  as  those  of  1547,  1551,  and  1558,  was, 
therefore,  the  abolition  of  the  "  Haevn  "  (or  feud)  the  coercion  of 
a  resort  to  court  proceedings. 

These  laws  also  prescribe  death  for  homicide  (except  where  done 
by  accident  or  in  self-defense),  whether  the  offender  was  caught 
in  the  act  or  declared  outlawed  and  later  apprehended ;  his  per- 
sonal estate  was  forfeited,  half  to  the  king  and  the  other  half  to 
the  heirs  of  the  deceased ;  the  offender's  relations  being  declared 
exempt  from  contribution  or  vengeance.  Where  the  fugiti\e 
made  good  his  escape,  or  purchase  of  peace  by  money  was  offered 
him  by  the  king  and  kin,  his  relatives  w^ere  to  produce  two  thirds 
of  the  legal  "  man-fine  "  to  the  victim's  heirs,  as  provided  in  earlier 
legislation.  Vengeance  on  kin  was  prohibited  in  all  cases,  and  an 
old  rule  was  revived  prohibiting  reconciliation  without  legal  pro- 
cedure. But  these  provisions  were  limited  to  manslaughter  com- 
mitted by  yeomen  ("  Bonde  ")  or  burghers  ("  Kj(/)pstadmand  ") 
and  not  applicable  to  the  nobility.  The  latter  preserved  the  right 
of  private  vindication ;  and  charges  involving  the  life  or  honor  of 
any  of  its  members  came  only  under  the  jurisdiction  of  the  king 
and  the  high  court  of  the  realm  (an  exception  being  noted  in  the 
Kallundborg  Decree  of  1576,  ch.  13,  providing  the  death  penalty 
for  a  nobleman  who  should  deliberately  kill  his  brothers). 

292 


Chapter  XI]         OTHER   COUNTRIES   IN   THE    15ÜÜ  S-17ÜU  s         [§59/ 

Outlawry  still  ensued  for  unmuletable  offenses,  or  on  failure  to 
produce  lejijal  or  promised  fines.  The  provision  in  the  Ordinance  of 
Erik  Glipping  of  1284,  was  reenacted  in  the  Decrees  of  1547  and 
1558,  outlawing  any  one  who  should  fail  to  pay  a  forty-mark  or 
other  important  fine  or  secure  a  bondsman  therefor  within  six 
weeks  after  sentence.  Outlawry,  however,  was  put  into  practice 
chiefly  for  crimes  subject  (under  the  revised  laws)  to  capital  punish- 
ment where  the  felon  was  not  caught  in  the  act  and  escaped 
during  the  period  of  time  allowed  after  sentence.  This  period, 
which  had  varied  from  a  day  and  a  month  to  three  days 
and  three  nights,  was  now  fixed  at  a  day  and  a  night ;  if 
caught  thereafter,  the  death  penalty  was  exacted.  The  second 
p]cclesiastical  Law  of  Christian  II  authorized  any  one  to  kill  a 
fugitive  murderer;  and  while  there  is  a  decision  of  the  House  of 
the  Lords,  of  L537,  acquitting  the  defendant  from  ])unishment 
for  such  an  act,  the  Decrees  are  silent  on  the  subject,  and  it  is  doubt- 
ful if  outlawry  operated  to  this  extent  any  longer.  By  the  Act 
of  1537,  it  behooved  the  royal  bailiff  to  "  mete  out  justice  on  his 
neck  "  where  the  murderer  had  not  been  seized  in  the  act  l)ut  was 
sworn  to  be  outlawed,  and  he  was  later  charged  with  the  duty  of 
pursuing  and  apprehending  the  fugitive.  ^Yhile  these  Decrees 
do  not  expressly  authorize  every  jierson  to  seize  the  outlaw,  there 
is  recorded  a  judgment  of  the  Viborg  Land-Thing  of  lö7(),  accord- 
ing to  which  all  present  at  a  "  Thing  "  where  a  murder  was  com- 
mitted were  in  duty  bound  to  seize  the  criminal ;  and  this  rule  was 
later  made  general. 

Where  reconciliation  w^as  made  and  fines  paid,  the  offended  party 
delivered  a  "  letter  of  release  of  feud  "  (like  the  earlier  "  Tryg- 
deed,"  ante,  §  39a)  whereupon  the  royal  official  {)roclaimed  "  the 
peace  of  the  king  upon  him."  Where  in  particular  cases  there  was 
a  doubt  as  to  the  manner  of  punishment,  or  aggravating  or  extenu- 
ating circumstances  appeared,  the  defendant  was  referred  to  the 
"  king's  favor  or  disfavor  "  and  his  case  was  decided  directly  by 
the  ruler. 

Penalties.  —  The  ecclesiastical  jurisdiction  had  been  transferred, 
at  the  time  of  the  Reformation,  to  the  State ;  and  this  led  to  some 
changes  in  penalties.  Thus,  the  Decree  of  1537  prescribed  death 
for  a  spouse  guilty  of  adultery,  and  also  for  the  paramour,  this 
penalty  being  later  limited  by  the  statute  of  1539  to  a  third  offense, 
and  later  laws  not  mentioning  the  third  party.  For  seduction, 
fines  were  imposed,  payable  to  the  oll'ended  party  and  the  king 

293 


§  59/ ]    THE  RENASCENCE  AND  THE  REFORMATION      [Paut  I,  Title  III 

(as  theretofore  to  the  bishop),  and  repeated  offenses  later  involved 
the  death  penalty.  In  the  Ordinances  of  Frederick  II,  of  1582, 
incest  and  bigamy  are  referred  to  in  connection  with  adultery, 
but  no  special  section  covers  these  crimes,  while  the  penalties  were 
made  the  same  as  for  adultery  under  Christian  IV,  viz.,  forfeiture 
of  estate,  exile,  and  in  case  of  failure  to  depart,  death.  False 
swearers  were  deprived,  under  Christian  II,  of  the  two  fingers  raised 
for  the  oath  ;  the  later  Act  of  1537  termed  this  a  mode  of  warding 
off  the  wrath  of  Deity  ;  this  punishment  was  reserved  by  later  acts 
for  repeated  perjuries  deliberately  made.  Witchcraft  would  seem, 
in  the  Ecclesiastical  Law  of  Christian  II,  to  have  already  involved 
the  death  penalty,  if  actual  injury  had  been  inflicted  upon  some  one ; 
it  also  punished  with  whipping  a  consultation  with  witches. 
While  the  Decrees  generally  do  not  expressly  deal  with  this  offense, 
the  stake  was  in  use,  as  is  shown  by  divers  judgments  under  Chris- 
tian IV  (1617) ;  necromancy  and  superstitious  practices  were 
punished  with  forfeiture  of  goods  and  exile. 

By  sundry  other  amendments  to  the  penal  laws,  public  punish- 
ments were  imposed  for  offenses  which  had  previously  been  subject 
to  fines  only,  as  well  as  for  misdemeanors  which  were  not  viola- 
tions of  any  individual  right  but  involved  the  moral  and  public 
order.  There  was  a  more  general  extension  of  public  prosecution  ; 
and  express  declaration  is  made  of  the  general  duty  of  the  public 
officials  to  watch  o^'er  the  enforcement  of  law. 

Legislation  in  the  1600  s.^  —  The  internal  disorders  which  devas- 
tated Denmark  after  the  death  of  King  Frederick  I  led  to  the  en- 
actment of  severer  statutes  for  the  punishment  of  crimes.  With 
Christian  Ill's  ascent  to  the  throne  the  government  acquired 
increased  authority  and  undertook  to  extend  to  the  entire  kingdom 
the  operation  of  the  penal  laws  in  force  in  market  towns.  The 
crime  of  murder,  hitherto  relegated  largely  to  the  sphere  of  private 
vengeance,  was  now  made  subject  to  public  prosecution.  The 
chief  obstacle  was  the  insistence  of  the  nobility  on  the  preservation 
of  its  privilege  to  settle  its  feuds  with  the  armed  hand.  A  measure 
of  considerable  progress  aimed  against  this  privilege  was  the  Proc- 
lamation of  ]\Iay  1,  1618,  inhibiting  generally  duels  with  fire- 
arms.    The  privileged  class,  however,  continued  to  exercise  its 

2  [This  paragraph  suras  up  §§  163-165  of  J.  L.  A.  Kolderup-Rosen- 
vinge's  "Grundrids  af  den  danske  Retshistorie"  (Copenhagen,  3d  ed., 
1860),  together  with  the  notes  thereon  by  J.  E.  Larsen  in  his  "Fore- 
ItBsninger  over  den  danske  Retshistorie",  §§  163-165  (Copenhagen,  1861)» 
—  Ed.] 

294 


Chapter  XI]         OTHER   COUNTRIES   IN   THE    15ÜÜ  Ö-17Ü0  S  [§  59/ 

powerful  influence  in  the  government,  as  is  evidenced  by  its  issu- 
ance of  "  letters  of  release  of  feud  ",  binding  the  kin  of  the  person 
killed,  without  the  cognizance  of  public  authority,  during  the  reign 
of  Christian  lY. 

A  notable  feature  in  the  criminal  legislation  of  this  period,  is  that, 
as  a  motive  for  ordaining  punishment  for  crime,  in  addition  to  se- 
curing the  order  of  the  State  and  preventing  crime,  it  professes  to 
aim  at  diverting  the  wrath  of  God,  and  his  punishment  of  the 
people. 

Offenses  penalized  by  cai)ital  punishment  were:  (1)  deliberate 
murder,  committed  by  those  not  of  the  nol)ility ;  (2)  rape;  and 
(3)  adultery.  Offenses  against  the  administration  of  justice  were 
heavily  penalized  —  unrighteous  judges,  clerks  forging  the  records 
of  the  "Thing",  and  perjurers.  While  accidental  acts  were  no 
longer  generally  held  criminal,  there  was  nevertheless  retained  in 
the  INIanor  Act  of  Frederick  II  the  ])ro vision  of  the  Law  of  Erik 
of  Pomerania,  prescribing  a  barbarous  penalty  for  negligently 
causing  a  conflagration  ("if  damage  result  through  the  neglect 
of  any  one  from  fire  and  light,  then  he  shall  immediately  be  seized 
and  thrown  into  the  same  fire,  if  he  be  caught  in  the  act  ").  Im- 
prisonment at  hard  labor  at  Bremerholm  or  in  the  House  of  Cor- 
rection became  frequent  punishments  under  Christian  IV. 

The  jurisdiction  of  the  State  authorities  now  embraced  that  of 
the  former  ecclesiastical  courts,  and  was  extended  to  include 
many  acts  not  involving  wrongs  to  individuals.  Among  the 
offenses  now  recognized  were  witchcraft,  vagrancy  and  beggary, 
incest,  concealment  of  child-birth,  and  relapse  into  the  Catholic 
creed.  Moral  conditions  during  the  1500  s  had  been  at  a  low  ebb  ; 
the  priesthood,  monks,  and  nuns  being  especially  depraved.  At 
the  Council  of  Constance  it  is  recorded  that  over  seven  hundred 
"  pleasure-maids "  were  present  at  the  gathering.  Even  the 
Reformation  effected  little  change,  and  improvement  came  only 
with  the  spread  of  knowledge.  Gluttony,  drunkenness,  libertin- 
ism, and  gross  living  were  common.  Private  feuds  and  self-redress 
were  frequent.  A  large  niunber  of  persons  were  executed  for  witch- 
craft, towards  the  close  of  the  1600  s;  and  among  these  victims 
of  superstitious  creeds  are  found  noble  ladies,  one  of  whom,  Chris- 
tence  Kruckow,  was  charged  with  having  instituted  at  the  univer- 
sity a  "  Stipendium  decollatir  virginis." 

The  dominant  principles  in  the  Sivcdhli-Finni^s'h  pnidl  rodi'.s^ 
during  this  period  were  the  following : 

295 


§  59/]     THE  RENASCENCE  AND  THE  REFORMATION     [Part  I,  Title  III 

(1)  The  "  lex  talionis  "  is  the  highest  justice  according  to  the 
Law  of  God,  i.e.,  the  Mosaic  Law ;  (2)  The  legislator  shall  en- 
deavor to  intimidate  miscreants  from  criminal  actions  by  the  most 
severe  penalties ;  (3)  The  legislator  shall  seek  to  soften  the  wrath 
of  Deity  and  save  the  realm  from  his  vengeance  l)y  the  most  severe 
punishments. 

Regarding  the  first  proposition,  the  Church  rules  were  not  only 
viewed  as  the  sources  of  the  national  religion,  but  also,  especially 
the  principles  of  the  Old  Testament,  were  deemed  positive  legis- 
lation of  Divine  origin,  binding  on  all  nations  in  all  ages. 

The  adherence  to  the  second  rule  is  amply  evidenced  in  penal 
history,  notable  in  the  Manor  Laws,  the  military  law,  and  special 
ordinances.  Thus,  Gustavus  Adolphus  prescribed  death  for  the 
killing  of  a  stag  or  a  swan. 

The  doctrine  contained  in  the  third  principle  was  followed  in 
many  enactments,  such  as  the  patent  regarding  felonies  of  May  1, 
1653,  the  royal  statute  regarding  fines  and  breaches  of  the  Sabbath 
(October  2,  1665),  and  the  law  of  infanticide  (March  1,  1681  and 
November  15,  1684).  Likewise,  it  appears  in  the  prosecutions  for 
witchcraft  during  the  close  of  the  1600  s,  wherein  the  "  law  of  God  " 
was  enforced  without  mercy  and  the  witches  burned,  in  order  to 
secure  immunity  from  "  the  rage  of  Satan  and  his  cohorts  "  and  to 
divert  the  wrath  of  the  Lord  from  the  realm.  Xor  was  this  idea 
confined  to  offenses  against  morals  and  religion ;  it  is  notable  in 
the  act  regarding  duels  (August  22,  1682). 

In  course  of  time,  however,  the  general  conscience  came  to  dis- 
approve of  these  harsh  punishments,  and  while  the  provisions 
still  lingered  in  the  books,  milder  penalties  were  employed  in  ac- 
tual practice.  The  Penal  Code  of  Queen  Cristina  introduced  a 
system  more  in  accord  with  this  common  sense  of  justice  and  actual 
practice.  A  thorough  reform  is  visible  in  the  Code  of  1734  —  the 
labor  of  a  century.  Nevertheless,  the  dominant  principles  re- 
mained unchanged,  although  the  principle  was  now  recognized  that 
the  penalty  should  aim  to  be  only  a  just  retribution.  Draconic 
punishments  still  remained ;  capital  punishment  being  prescribed 
in  sixty-eight  cases. 

INIarking  an  epoch  in  the  development  of  penal  law,  is  the  act  of 
the  Swedish  Parliament,  January  20,  1779,  expressing  that  new 
humane  tendency  which  became  dominant  during  the  latter  half 
of  the  1700  s.  Gustavus  III  was  well  versed  in  the  "enlightened  " 
philosophy  of  the  1700  s ;  and  it  had  been  his  genuine  desire  to  in- 

296 


Chapter  XI]  OTHER   COUNTRIES   IN   THE    1500  s-1700  S  [§  ö9g 

troduce  an  even  more  thorough  reform  than  that  which  was  em- 
bodied in  the  statute  of  1779. 


B.  Switzerland  ^ 


§  59^.  Switzerland  in  the  1500  s 
and  the  1600  s;  the  Ref- 
ormation   Period. 


59h.     The     1700  s;      the      "Auf- 
klärung"   Period. 


§  59<7.  The  1500  s  and  the  1600  s;  The  Reformation  Period. — 
Whether  the  Carohna  ever  had  force  in  Switzerland,  either  formally 
or  substantially,  opinions  have  differed  widely.  Most  of  its  pro- 
visions dealt  with  procedure,  and  therefore  would  not  be  appli- 
cable. No  doubt  it  was  more  or  less  used  by  magistrates  for  their 
guidance.  In  matters  directly  involving  the  peace-law,  the  Caro- 
lina in  Germany  displaced  the  former  rules ;  but  in  Switzerland  the 
peace-law  was  little  affected  by  it.  For  example,  the  law  of  self-de- 
fense and  self-redress  was  restricted  by  the  Carolina  to  cases  of  life 
and  limb,  but  in  Switzerland  preserved  its  larger  scope.  Again,  the 
attempt  as  an  independent  offense  was  broadly  recognized  in  the 
Carolina,  but  was  not  recognized  in  Switzerland. 

The  Reformation,  of  course,  affected  the  criminal  law  in  Swit- 
zerland much  as  it  did  in  Germany,  even  in  the  cantons  which  re- 
mained Catholic.  This  period  of  law  shows  a  stern  and  even  harsh 
spirit  of  repression,  and  is  in  many  respects  a  retrogression.  Reli- 
gion, morality,  and  authority  are  its  marked  elements.  Offenses 
against  religion  and  creed  become  nimierous,  as  in  Germany,  and 
are  harshly  punished.  Blasphemy,  adultery,  incontinence,  and 
sinful  acts  generally,  become  prominent  in  criminal  justice. 
Church  and  State  mutually  assist  in  the  zealous  task. 

There  were,  to  be  sure,  differences  observable  tlue  to  local  condi- 
tions and  personalities.  Calvin  at  Geneva,  Zwingli  at  Zürich, 
Luther  in  Germany,  had  dominant  influence,  each  in  his  own  way. 
Calvin  introduced  a  terrorist  ecclesiastical  administration,  em- 
phatic in  its  Puritanism.  Zwingli's  nature  was  liberal  and  demo- 
cratic ;  his  heart  was  with  the  connnon  j^eople,  and  he  led  a  struggle 
against  the  privileged  aristocratic  families.  Luther  was  in  the 
confidence  of  the  German  territorial  princes,  and  their  ambitions 
were  closely  related  with  the  success  of  tlie  Protestant  faith.     In 

>  [These  two  sections  are  by  the  Editor,  using  Dr.  Pfenmnckk's 
treatise  as  authority ;  for  this  author  and  work,  see  the  Editorial  Pref- 
ace. —  Ed.] 

297 


§  5!)/i]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

Germany,  but  not  in  Switzerland,  the  Iloman  law  was  introduced 
})()(lily  (partly  by  lej^islation,  i)artly  through  the  professionally 
educated  judiciary).  With  it  came  the  doctrine  of  the  ruler's 
authority  as  the  all-sufficient  basis  of  law.  This  culminated  in  the 
exaltation  of  judicial  discretion  as  the  measure  of  crimes  and  pen- 
alties, and  of  governmental  absolutism  as  representing  divine 
authority  in  the  repression  of  crime  and  sin.  From  the  excesses 
of  these  doctrines  the  Swiss  cantons  were  relatively  exempt. 

Nevertheless,  Swiss  criminal  law  exhibited  the  general  features 
of  the  times,  —  a  harshness  and  cruelty  in  the  penalties,  —  an  em- 
phasis on  the  sinfulness  of  crime,  the  wrath  of  God  for  a  people's 
offenses,  and  the  God-commanded  duty  of  obedience  to  authority. 
In  Geneva,  Calvin's  censorial  laws,  Draconian  in  their  strictness 
and  arbitrariness,  were  so  harshly  enforced  that  at  last  the  town 
rose  and  expelled  him.  But  his  spirit  still  dominated.  Not  until 
the  all-European  reaction  of  Rousseau's  time  did  that  community 
tear  itself  free  from  its  intellectual  slavery  and  recover  its  old  Swiss 
spirit  of  freedom.  In  his  "  Lettres  de  la  Montagne,"  Rousseau 
describes  the  abnormal  authority  of  the  Geneva  Council  in  crimi- 
nal matters  :  "Its  power  is  absolute  in  every  respect.  It  is  prose- 
cutor and  judge.  It  sentences  and  it  executes.  It  summons, 
arrests,  imprisons,  tries,  judges,  and  punishes,  —  itself  alone  does 
all." 

And  yet  this  stern  and  intolerant  system  had  its  due  place  in  the 
history  of  progress.  It  led  in  a  great  movement  of  regeneration 
in  morals  and  the  building  up  of  State  authority  in  criminal  law. 
After  the  political  anarchy  and  the  riotous  pleasure-loving  excesses 
of  the  Middle  Ages,  it  signalized  a  natural  reaction  towards  orderly 
government  and  beneficent  asceticism  and  self-castigation.  One 
of  the  historians  of  Bern's  laws  thus  sums  up  the  period:  "  It 
was  not  a  mere  matter  of  new  religious  dogmas,  but  of  the  renova- 
tion of  the  moral  life,  personal  and  national." 

§  59/f.  The  1700  s;  the  "Aufklärung"  Period  — ^  To  recon- 
struct a  picture  of  the  criminal  law  of  the  1700  s  is  not  easy.  The 
sources  were  multifarious ;  Roman  law,  Canon  law,  and  the  Caro- 
lina ;  practice-books,  judiciary  acts,  local  custumals,  —  all  these 
were  found  more  or  less  in  every  canton.  Much  of  the  medieval 
law  persisted,  in  name  at  least.  The  Territorial  Law-Book  of 
Glarus,  as  late  as  the  issues  of  1807  and  1835,  still  preserved  parts 
of  the  peace-law'  dating  back  to  the  1400  s.  In  Schwyz  as  late  as 
1700  w^as  found  the  custom  of  delivering  over  the  homicide's  body 

298 


Chapter  XI]        OTHER  COUNTRIES  IN  THE   1500  S-1700  S        [§  59/i 

to  the  victim's  family.  In  Glarus  the  last  wager  of  battle  and  the 
last  witch-trial  took  place  only  in  1707. 

But  the  crudest  of  the  old  penalties  had  fallen  into  disuse.  In 
Zürich,  empaling  and  immuring  had  not  been  inflicted  since  the 
1400  s,  nor  drowning  since  1615  ;  and  by  the  1700  s  beheading  had 
become  the  usual  mode  of  execution.  The  figures  of  executions  in 
Zürich  and  Schwyz  show  plainly  the  diminishing  harshness  :  in  the 
1500  s,  572  executions  ;  in  the  iboO  s,  ;3;3G  ;  in  the  1700  s,  149.  The 
modes  of  execution  are  equally  significant :  in  the  1500  s,  by  fire  61 , 
by  gallows  55,  by  drowning  53  ;  in  the  1600  s,  by  fire  14,  by  gallows 
10,  by  drowning  9 ;  in  the  1700  s,  by  fire  2,  by  gallows  16,  by  the 
wheel  1,  by  the  sword  (beheading)  106. 

j\Iost  of  the  changes  towards  progress  came  about  by  judicial 
practice ;  express  legislation  is  found  for  only  the  extremest  de- 
fects ;  in  the  Bern  Law-Book  revisions  from  1753  to  1793  is  almost 
nothing  of  importance.  But  though  legislation  was  not  active, 
public  opinion,  as  reflected  in  the  literature  of  the  period,  was  fully 
responsive  to  the  new  thought  of  the  times.  The  "  Aufklärung  " 
period,  here  as  in  Germany  —  that  movement  of  the  leaders  of 
educated  thought  to  banish  popular  error  and  superstition  and 
to  introduce  liberal  thinking  and  "  enlightenment  "  —  showed 
its  influence  in  criminal  justice.  The  all-European  agitation 
against  torture  received  a  welcome  here  and  showed  early  re- 
sults. Montesquieu's  influence  was  widely  felt.  The  beneficent 
possibilities  of  education  found  some  of  their  leading  apostles  in 
Switzerland. 

And  as  the  new  period  of  the  ISOOs  arrived,  ushered  in  by  the 
French  Revolution,  what  were  some  of  the  principal  features  in 
which  the  survival  of  the  traditional  ideas  of  Swiss  criminal  law 
might  still  be  seen  ? 

1.  The  old  peace-law  still  preserved  its  rules  for  the  citizen's 
duty  to  intervene  by  parting  the  combatants  and  giving  informa- 
tion to  the  court.  The  principle  of  honor  in  word  and  act  was  still 
a  living  one.  Stealing  and  fraud  were  still  more  heavily  jHMialized 
than  wounding  or  even  manslaughter ;  in  Schwyz  two  men  were 
hung  for  stealing  and  fraud  as  late  as  1822.  The  absconding 
debtor  was  regarded  as  a  thief.  Gambling,  the  squandering  of 
family  property,  shirking  of  labor,  and  the  like,  were  strictly  repre- 
hended. The  modern  point  of  view,  which  condones  or  admires 
smart  dealing,  tricky  business  methods,  and  clever  evasion  of 
obligations,  so  long  as  one  keeps  out  of  jail,  was  as  yet  nowhere 

299 


§  59h]      TUE  RENASCENCE  AND  THE  REFORMATION      [Paut  I,  TiTLE  III 

accepted  in  Switzerland.  The  j)rimitive  notions  still  prevailed 
that  one's  word  should  be  as  good  as  gold,  —  "  honor  with  the  word 
and  with  the  sword."  The  Territorial  Law-Book  of  Glarus  de- 
clared that  he  who  fails  to  pay  his  debts  shall  no  longer  })e  trusted 
in  his  word ;  the  bankrupt  was  "  honor-less  "  ;  and  in  this  canton, 
it  is  recorded,  so  firm  was  the  sense  of  honor  that  ordinarily  neither 
note  nor  receipt  was  given  when  money  passed. 

2.  In  some  of  the  cantons  a  mildness  of  penalties,  remarkable 
for  this  period,  is  observable.  In  Uri,  the  death  penalty  was  re- 
stricted to  murder  and  arson.  The  wrongdoer  is  often  described 
in  the  judgments  as  only  a  misguided  man ;  the  intercession  of 
his  family  is  given  weight ;  the  sentence  is  modified  "  in  view  of  the 
circumstances  of  the  case."  No  doubt  this  lenity  may  be  attrib- 
uted to  the  (nowadays  often  criticized)  tendency  of  lay  judges  to 
undue  weakness  in  imposing  extreme  penalties ;  and  in  these  primi- 
tive cantons  the  tribunals  were  composed  sometimes  of  as  many 
as  200  or  more  citizens.  But  there  is  a  general  atmosphere  of  primi- 
tive patriarchalism,  —  benevolent,  and  yet  crude  in  its  methods. 
Flogging  remained  long  in  use  as  a  judicial  penalty ;  a  notorious 
case  of  excess,  in  Uri,  as  late  as  1865,  aroused  national  resentment, 
and  evoked  even  foreign  comments  on  "  the  barbarous  justice  of 
Swiss  democracy."  Other  penalties  also  serve  to  illustrate  the 
simplicity  of  a  primitive  community,  —  confession,  church-pen- 
ance, listening  to  an  appointed  sermon,  pilgrimage.  And  equally 
suggestive  were  the  sentences  to  be  imprisoned  by  one's  father, 
to  be  watched  over  by  one's  friends,  or  to  abstain  from  wine  or 
social  company. 

3.  Nevertheless,  the  path  w^as  already  prepared  in  many  ways  for 
accepting  the  new  ideas  of  Napoleon's  and  Feuerbach's  criminal 
codes  in  the  next  century.  The  old  classical  Sw^iss  principle  of 
individual  manhood  as  its  own  defense,  "  honor  and  the  sword," 
had  in  many  cantons  gradually  become  an  anachronism.  Habit- 
ual weapon-bearing,  as  a  general  custom,  had  long  disappeared. 
The  traditional  right  of  self-defense  and  self-redress  was  strictly 
limited.  The  individual  had  become  overshadowed  by  official 
authority.  The  peace-law  system  \vas  antiquated  and  inefficient ; 
and  with  it  would  disappear  the  kernel  of  the  old  law.  A  killing 
while  under  a  special  peace  might  still  be  legally  murder ;  but  the 
community  was  ready  to  accept  a  new  point  of  view  as  soon  as  the 
law  should  formally  sweep  away  the  relics  of  the  old  system.  For 
most  of  its  details  w'ere  plainly  relics  of  the  past.     Chiefly  in  form 

300 


Chapter  XI]  OTHER   COUNTRIES   IN   THE    1500  S-1700  S  [§  59i 

only  was  the  criminal  law  in  contrast  with  the  coming  ideas ;   the 
community  was  substantially  ready  for  them. 

C.  Netherl,\nds  ^ 


§  59i.  Sources  of  Criminal  Law  in 
the  Netherlands  before 
the  1500  s. 

§  59/.  The  Roman  Law  and  the 
Carolina. 


§  59A-.  General  Features  of  the 
Criminal  Law  from  Later 
Medieval  Times  to  the 
1700  s. 


§  59i.  Sources  of  Criminal  Law  in  the  Netherlands  before  the 
1500  s. — After  the  fall  of  the  Carolingian  monarchy,  there  suc- 
ceeded an  epoch  about  which  little  is  known.  In  all  probability, 
the  common  law  together  with  the  King's  law,  in  altered  and 
perfected  form,  still  prevailed  in  e very-day  usage,  and  became  pre- 
dominant as  active  law  through  its  administration  by  the  justices' 
courts.  With  the  exception  of  the  written  sources  of  law,  in  which 
the  common  law  found  sanction,  the  most  important  sources  of  the 
common  law  in  the  1500  s  were  the  collected  customs  and  usages. 

The  written  law  began  developing  in  some  sections  of  Netherland 
in  the  1000  s,  in  others  later,  in  the  shape  of  charters,  privileges, 
liberties,  patents  granted  by  the  counts  or  other  territorial  lords, 
as  well  as  municipal  and  rural  laws,  decisions,  ordinances,  court 
regulations,  market  privileges,  etc.  In  the  field  of  criminal  law, 
these  written  sources  originally  included,  as  a  rule,  the  assessments 
of  fines ;  furthermore,  they  corroborated  the  common  law  as  re- 
garded the  ordinary  crimes,  or  they  fi.xed  penalties  for  newly  de- 
fined offenses,  e.g.,  the  clipping  of  money,  begging,  cattle-stealing, 
etc.  Some  of  these  rural  and  municipal  laws  for  that  period 
even  contain  fairly  complete  codifications  of  criminal  law.  For 
information  regarding  the  law  in  earlier  or  later  times,  the  investi- 
gator should  not  overlook  the  law  books,  explanations,  or  compila- 
tions such  as  the  invaluable  "  Law-book  of  Briel  "  by  Jan  Mat- 
thyssen,  of  about  1400,  and  the  "Rural  Law  of  Overyssel  "  by 
Melchior  Wynhoff  in  1559. 

The  Canon  criminal  law,  although  it  did  not  prevail  directly  in 
the  civil  courts,  became  powerful  in  more  ways  than  one.  It  in- 
fluenced the  people  to  regard  crime  as  a  sin  (along  with  the  "  de- 
licta   ecclesiastica  ",    the    "  delicta    civilia  "    and    especially    the 

1  [The  ensuing  three  sections  are  translated  (with  a  few  omissions) 
from  §§  .3-11  of  Professor  G.  A.  Van  Hamici/s"  NetheHands  Criminal 
Law."     For  this  author  and  work,  sec  the  Editorial  Prefuci'.  —  Kd.] 

301 


§  50j]      THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

"  mixta  "),  a<jjainst  which  tlic  Church  threatened  lier  penalties 
("  poeuitentiöe  ",  "  poense  medicinales  ",  "  pee  me  vindicativai  "). 
It  colored  the  views  of  the  law-givers,  and  especially  of  the  writers 
of  standing,  who  frequently  cited  ecclesiastical  decisions ;  while 
judgments  of  courts  were  influenced,  partly  by  the  Canon  law  in  a 
narrow  sense,  partly  by  the  authority  of  Christianity,  in  general, — 
based  upon  biblical  passages,  particularly  the  Mosaic  law.  Mean- 
while, however,  with  the  coming  of  the  Reformation,  the  Canon 
law  proper  gradually  ceased  to  be  of  importance  in  the  development 
of  the  law  of  crimes  in  these  sections  of  the  country. 

§  59/.  The  Roman  Law  and  the  Carolina.  —  The  great  event 
in  the  history  of  the  law,  known  as  the  Reception  of  Roman  Law, 
exercised  in  the  Netherlands  as  elsewhere  its  powerful  influence  in 
the  field  of  criminal  law.  An  acquaintance  with  the  Roman  law 
undoubtedly  began  as  early  as  the  1100  s  and  1200  s,  when  the  young 
men  of  the  Netherlands  began  to  visit  the  Italian  law  schools. 
The  Roman  law  became  further  known  through  the  develop- 
ment of  legal  procedure  under  the  influence  of  those  learned 
jurists  who  had  already  begun  to  exercise  control  over  the  gov- 
ernment in  the  cities,  but  whose  direct  authority  in  the  matter 
of  the  administration  of  justice  assumed  a  decisive  character 
during  the  rule  of  the  Burgundian  princes.  The  courts  were 
then  being  composed  of  professionally  trained  jurists,  and  the 
Great  Council  had  just  been  created  (1473-1482)  and  perma- 
nently established  at  Mechelen  in  1503. 

Roman  law  had  acquired,  in  the  meantime,  a  positive  legal  status. 
The  Instruction  of  Charles  the  Bold  to  the  Council  (1462)  is  the 
oldest  known  authority  in  which  it  is  ordered  to  "  proceed  after 
the  contents  and  the  form  of  written  laws  " ;  while  in  Friesland, 
which  first  acknowledged  the  authority  of  the  Roman  law,  the 
"  imperial  laws  "  were  definitely  adopted  b}^  the  confirmation 
letter  of  Charles  V,  in  1524.  Whether  the  Roman  law  carried 
equal  weight  in  all  the  provinces  depended  very  naturally  upon 
whether  the  written  criminal  law  was  equally  complete  in  all 
localities. 

That  division  of  classic  Roman  practice  relating  to  criminal  law 
was,  without  a  doubt,  very  slow  in  developing  as  compared  with 
private  law,  for  no  systematic  treatment  of  the  law  of  crimes  is  to 
be  found  in  the  Roman  law-sources.  Because  of  the  imper- 
fections and  deficiencies  of  the  national  criminal  law,  and  the 
growing  need  of  a  system  of  public  law,  the  Roman  criminal  law 

302 


Chapter  XI]         OTHER   COUNTRIES   IN   THE    1500  S-1700  S         [§  59j 

found  a  fertile  soil  prepared  for  its  growth  and  development.  The 
criminal  law  of  which  we  are  speaking  is  that  of  the  Corpus  Juris 
(mostly  contained  in  "Libri  terribiles  "  XLMI  and  XLVIII  of  the 
Digest,  and  Liber  IX  of  the  Codex).  It  had  developed,  (a)  from 
the  old  law  of  the  "  delicta  privata  ",  (6)  from  the  continually 
expanding  "  leges  publicorum  judiciorum  "  ("  crimina  publica  ", 
"poena?  legitimse  ",  "  ordinarire  "),  (c)  from  the  penalizing  by 
means  of  "  Acta  "  and  "  Constitutiones  "  of  various  acts  (more  se- 
rious forms  of  the  "delicta  privata",  or  actis  which  could  not  be 
classified  under  any  "  lex  publicorum  judiciorum  "),  to  which, 
as  "  crimina  extraordinaria",  with  the  "  extraordinaria  cognitio  " 
of  the  imperial  judges,  a  "  poena  extraordinaria  "  or  "  arbitraria  " 
was  applied.  An  especially  wide  choice  of  penalties  under  the 
public  law  was  given  in  this  latter  Roman  law,  e.g.,  capital  punish- 
ments of  every  description;  corporal  punishments  which  maimed 
the  victim,  and  those  which  did  not ;  confinement  at  hard  labor ; 
confiscation  of  property,  etc.  The  various  crimes  were  not  clearly 
defined  and  distinguished,  and  there  was  no  systematic  develop- 
ment of  general  principles  in  the  early  sources.  For  instance, 
the  definition  of  the  several  crimes  was  not  sharply  made ;  and 
though  "  dolus"  was  expressly  required,  attempt  or  j)articipation 
was  also  included  in  the  general  idea  of  each  crime.  But  the  Ro- 
man law,  including  criminal  law,  as  accepted  in  the  1500  s,  was  not 
the  pure  law  of  the  classic  sources.  The  Roman  source  law  in  its 
original  form  had  been  worked  over  by  the  Glossators  and  Post- 
glossators  ;  and  the  criminal  law  in  particular  had  been  to  a  certain 
degree  systematized  and  scientifically  treated  by  such  Italian 
criminalists  of  the  Middle  Ages  as  Albertus  Gandinus,  Angelus 
Aretinus,  and  others.  This  legal  system  acquired  an  ever-increas- 
ing influence,  as  later  writers,  in  the  course  of  time,  gradually 
worked  out  and  applied  its  principles.^ 

It  will  thus  be  seen  that  there  existed  in  the  Netherlands  prov- 
inces, since  approximately  the  1500  s,  a  system  of  ])nblic  criminal 
law  which  continued  in  practice  until  the  epoch  of  the  first  general 
codification  of  the  1800  s,  and  which,  according  to  the  writers  of 
this  epoch,  was  derived  from  the  following  sources:  the  common 
law,  written  law  in  general  (imperial,  provincial,  and  local  enact- 

1  On  the  Reception  of  the  Roman  Law  in  tlio  Duteh  provinces :  U'. 
Modder mon,  "The  Reception  of  the  Roman  Law"  (1873),  6.'i ;  G.  dc 
Vries  Az,  "Historia  introducti  in  provincias,  qnas  deineeps  respnblica 
Belgii  unit!  comprelu'ndil,  juris  Romani"  (1839);  and  other  writings 
quoted  by  Modderinau. 

303 


§  r>\)j\      TIIK  RENASCENCE  AND  THE  REFORMATION      [Pakt  I,  Title  III 

nu'iits),  Uoinan  law,  ecclesiastical  law  (partly  canonical  and  Mosaic 
in  character),  and  lastly,  authoritative  writers. 

The  Constitutio  Criminalis  Carolina,  and  the  Criminal  Ordi- 
nances.—  Two  gciicral  onliiiaiiccs  regarding  tlic  criniinai  law 
must  be  noted,  the  Constitution  Criminalis  Carolina  (C.C.C.) 
of  15:^2,  and  the  Criniinai  Ordinances  of  Philip  II  of  1570.  It  has 
been  rightly  remarked  that  "  in  judging  of  the  authority  of  these 
ordinances  in  the  several  provinces,  two  questions  in  particular 
must  he  considered,  i.e.,  to  what  extent  the  legislative  power  of 
the  one  who  gave  the  ordinances  had  developed  in  each  province, 
and  whether  the  formalities  required  to  make  the  ordinances  bind- 
ing have  everywhere  been  complied  with  "  (Fockema  Andrcjc). 

The  Carolina  ("  Keyser  Karls  des  fünfften  und  des  hey  1  igen 
Römischen  Reichs  peinlich  Gerichtsordnung  ")  is  one  of  the  most 
remarkable  of  all  the  relics  of  historic  German  criminal  law,  on  ac- 
count of  its  origin,  contents,  and  authority.  Instituted  in  1530 
and  1532  by  the  German  diets  of  Augsberg  and  Regensburg,  it 
was  the  outcome  of  the  necessity  for  combating  the  many  abuses 
in  administration  of  justice  and  the  lack  of  knowledge  of  the  pre- 
vailing law  on  the  part  of  the  unlearned  judges  of  that  period. 
The  German  Empire  was  already  fortunate  in  the  possession  of  the 
Bambergensis  (1507,  "  mater  Carolinse  "),  an  excellent  model 
containing  a  systematic  collection  of  Germanic  and  Roman-Canon 
criminal  law,  which  had  become  established  under  the  authority 
of  the  Italian  criminalists.  It  was  compiled,  in  part,  by  Johannes 
Freiherr  of  Schwartzenberg  and  Hohenlandsberg  (1528),  who  also 
participated  in  the  writing  of  the  Carolina. 

The  Carolina  is  an  ordinance  of  219  Articles,  providing  for  the 
administration  of  justice,  and  largely  made  up  of  rules  of  proced- 
ure. Certain  provisions  of  the  substantive  law  of  crimes  are  in- 
cluded in  Arts.  104-180,  in  which  may  be  found  not  only  defini- 
tions of  various  crimes  and  of  a  great  variety  of  penalties,  but  also 
an  elaboration  of  certain  general  doctrines,  e.g.,  self-defense,  com- 
plicity, attempt,  and  extent  of  responsibility.  While  it  creates 
little  new  law,  it  sets  forth  the  existing  law  in  intelligible  language. 
It  continually  advises  in  doubtful  cases  the  invoking  of  the 
"  counsel  of  the  jurisconsults  ",  thus  leaving  every  opportunity 
for  the  continuing  development  of  the  practice.  Though  the 
ordinance  (through  the  "  Clausula  salvatoria  "  of  the  Preface) 
contains  a  concession  to  particularism,  and  though  it  did  not  for- 
mally carry  the  weight  of  absolutely  binding  general  law,  yet,  be- 

304 


Chapter  XI]  OTHER   COUNTRIES   IN   THE    1500  S-1700  S  [§  59j 

cause  of  its  own  worth  and  the  additional  value  which  it  acquired 
through  use  by  authoritative  writers,  it  remained  the  foundation 
of  the  general  law  of  crimes  in  Germany.  In  certain  German 
States  it  continued  to  prevail  until  1871,  when  the  code  of  criminal 
law  for  the  North  German  Union  was  introduced. 

It  was  a  debatable  question,  even  in  the  latter  part  of  the  1700  s, 
whether  this  ordinance,  intended  for  and  prevailing  in  the  Em- 
peror's German  States,  had  any  effect  in  the  Netherlands,  particu- 
larly in  the  province  of  Holland.  It  is  pretty  generally  under- 
stood, however,  that  not  only  was  it  never  formally  introduced,  but 
that  no  attempt  was  made  to  do  so.  Nevertheless,  it  had  consider- 
able influence,  —  partly  because  some  courts  acknowledged  its 
authority,  and  partly  because  some  of  the  criminalists  of  the  1700  s 
(particularly  J.  S.  F.  Boehmer,  author  of  the  "  Meditationes  ad 
C  C.  C",  1770),  who  took  it  as  the  basis  of  their  views,  influenced 
the  administration  of  justice  in  this  country. 

A  similar  controversy  had  been  waged  over  the  binding  au- 
thority of  the  Criminal  Ordinances  of  Philip  IT,  of  the  5th  and  9th 
of  July,  1570,  the  former  treating  of  the  measure,  the  latter  of  the 
method,  of  Criminal  Justice,  and  both  extensively  commented  on 
by  the  Dutch  writer  Wigele  Van  Aytta.  The  basis  of  the  dispute, 
however,  was  not  the  same  in  the  two  cases.  For  these  ordinances 
were  instituted  by  the  king  as  lord  of  the  Netherlands,  while  they 
were  also  proclaimed  in  some  provinces,  particularly  in  Holland 
and  Gelderland.  By  the  Pacification  of  Ghent  (Art.  5),  they  were 
"  suspended  ",  entirely,  according  to  certain  authorities,  while 
according  to  others,  only  in  regard  to  the  provision  concerning 
heresy ;  and  the  Union  of  Utrecht  did  not  recede  from  this  resolu- 
tion. IMoreover,  as  the  ordinances  came  from  Philip  and  the 
Duke  of  Alva,  and  were  considered  to  be  contrary  to  the  old  privi- 
leges and  customs,  their  introduction  met  with  continuous  opposi- 
tion on  all  sides  ;  but  they  were  nevertheless  followed  in  very  many 
])rovisions,  particularly  by  the  law  courts  of  Holland.  "  During 
the  period  of  the  Republic,  the  ordinances  retained  a  certain  formal 
value,  but  they  had  no  binding  authority"  (R.  Fruin).  Mean- 
while, it  should  be  noted  that  but  few  provisions  of  substantive 
criminal  law  are  contained  in  these  Ordinances,  and  these  are 
found  almost  exclusively  in  the  first-named  Ordinance ;  among 
them  being  provisions  in  regard  to  crimes  affecting  the  adminis- 
tration of  justice,  the  prohibiting  of  private  composition  for  of- 
fenses, principles  regarding  uniform  rules  of  punishment,  with  ccr- 

305 


§  öilA]      THE  RENASCENCE  AND  THE  REFORMATION      [T'art  I,  TlTr,K  III 

tain  (li.scrc'tioiuiry  penalties  specified,  and  a  provision  tiiat  a  person 
should  be  condemned  only  according  to  written  laws,  etc.- 

Notliin<j  eanie  of  the  attempts  of  Charles  \'  and  Philip  to  collect 
the  customs  of  the  several  ])arts  of  the  country,  and  consolidate 
and  unify  the  law;  for  the  Revolution  broke  out,  and  the 
course  then  taken  by  political  events  frustrated  this  design. 
Consequently,  the  various  inequalities  and  uncertainties  of  the 
law  continued  a  part  of  the  system  until  the  codification  of  1809. 
As  late  as  the  end  of  the  1700  s  the  question  was  officiall.v  mooted, 
in  a  case  of  murder,  whether  justice  should  be  administered  accord- 
ing to  the  Roman  law,  the  Mosaic  law,  the  Carolina,  or  an  old 
charter  of  1342. 

§  5Ü/.'.  General  Features  of  the  Criminal  Law  from  Later 
Medieval  Times  to  the  1700  s.  —  Amidst  so  much  uncertainty  in 
the  law,  with  so  many  situations  on  which  the  laws  were  silent, 
it  was  not  surprising  that  resort  was  had  to  the  decisions  and  writ- 
ings of  famous  jurists.  The  quotations  found  in  the  works  of  the 
difi'erent  Dutch  writers  of  both  an  earlier  and  a  later  jjeriod  serve 
as  proof  of  this  condition  of  affairs.  To  be  sure,  the  customs,  some 
written  laws,  proclamations,  ordinances,  statutes,  etc.,  selections 
from  the  Roman  law  sources,  and  from  the  Bible,  are  also  quoted, 
but  the  principal  reference  is  to  the  army  of  authorities,  beginning 
with  the  Glossators,  down  to  the  immediate  predecessors  or  con- 
temporaries of  the  author.  The  Dutch  writers  of  the  different 
periods  are  therefore  of  great  importance. 

As  representative  of  the  1500  s  must  be  named  Jodocus  Damhouder 
of  Bruges  (1507-1581),  a  Fleming,  whose  "  Praxis  rerum  crimina- 
lium"  went  through  various  editions  in  Latin,  Dutch,  and  French, 
and  became  an  authority  in  other  countries  also.^     In  the  1600  s 

^  As  to  the  authority  of  the  Carolina  in  the  Netherlands,  see  /.  M. 
Kemper,  " Introduction  to  the  Criminal  Law",  p.  160,  and  /.  A.  Fruin, 
"Vaderl.  Letteroef.",  1867,  p.  340. 

As  to  the  authority  of  Philip's  Ordinances,  see  Kemper,  ib.  p.  168 ; 
Fruin,  ib.  p.  432;  A.  Oudeman,  "Criminal  Procedure  and  Criminal 
Law",  1873,  p.  3 ;  B.  Voorda,  "The  Criminal  Ordinances",  1792,  lutrod. 
§§  4-6. 

'  Damhouder's  treatise  was  published  in  three  languages,  first  in  Latin, 
then  in  Dutch,  and  finally  in  French ;  the  Latin  edition  being  the  most 
ample.  Tlie  first  edition  appeared  in  lööö,  then  numerous  others  in  the 
1500  s  and  the  1600  s;  a  German  one  appeared  in  1565.  It  was  after- 
wards discovered  that  Damhouder  had  plagiarized  his  boo!;:  almost 
entirely  from  the  "Criminal  Practice"  ("Practyeke  Crimineele")  of 
Philips  Wielarit  (1439-1519),  a  Ghent  lawyer.  The  only  known  manu- 
script of  Wielant's  work,  accidentally  discovered,  was  edited  in  1872 
(Ghent)  by  August  Orts,  who  \VTites :  "Damhouder  of  Bruges  adorned 
himself  with  the  feathers  of  the  peacock ;   the  European  fame  enjoyed  by 

30G 


Chapter  XI]         OTHER   COUNTRIES   IN   THE    1500  S-1700  S         [§  59fc 

came  Antonius  ]\Iatthseus  (lüOl-1654),  professor  at  Ilardewyk 
and  Utrecht,  who  in  his  work  "  De  C'riminibus  "  (which  also  in- 
cludes a  treatise  on  the  Utrecht  municipal  law)  went  back  to  the 
sources  of  the  Roman  law,  as  distinct  from  Germanic  and  Canon  law 
acquiring,  for  this  reason,  a  wide  influence  abroad  in  the  field  of 
scientific  law.  Belonging  also  in  this  century  were  Hugo  Grotius, 
who  wrote  the  "  Introduction  to  Dutch  Law  " ;  S.  van  Groene- 
wegen ;  Joh.  Voet  (1719),  author  of  "  Commentarii  ad  Pandec- 
tas  "  ;  F.  Zjpaeus ;  Pieter  Bort,  counsel  for  the  courts  of  Holland 
and  ^Yest  Friesland,  author  of  a  "  Treatise  on  Criminal  Matters  "  ; 
and  Simon  van  Leeuwen,  whose  writings  in  the  field  of  criminal 
law  are  indispensable  guides  to  the  administration  of  justice  and 
the  conceptions  of  law  of  this  period.  In  the  1700  s,  the  principal 
writers  were  E,  van  Zurck,  on  the  law  of  Holland,  J.  Schrassert, 
on  the  law  of  Gelderland,  J.  Moorman,  and  J.  J.  van  Ilasselt,  J.  L. 
Kersteman,  and  Prof.  B.  Voorda;  and  (during  the  latter  part  of 
the  1700  s  and  the  early  1800  s)  J.  van  der  Linden,  and  others. 

The  writers  outside  the  Netherlands,  who  were  quoted  as  au- 
thoritati^'e,  include  first,  the  great  masters  among  the  Glossators 
and  Post-glossators  who  dealt  with  Roman  law  in  general,  particu- 
larly Bartolus  (1357)  and  his  pupil  Baldus  (1400) ;  second,  the 
writers  on  Italian  criminal  practice  of  the  1300  s  and  1400  s  (devel- 
oped from  Roman  principles)  such  as  Albertus  Gandinus ;  Jacobus 
de  Belvisio  (died  1335) ;  and  Angelus  Aretinus.  The  Italian  crimi- 
nalists of  the  1500  s  exerted  still  a  strong  influence :  Ilippolytus 
de  Marsiliis  (Bologna,  died  1529),  Aegidius  Bossius  (died  1546); 
and  most  important  of  all,  Julius  Clarus  (member  of  the  Supreme 
Court  at  Milan;  died  1007),  and  Prosper  Farinacius  (Attorney- 
general  at  Rome  ;  died  IGIS).  Jurists  of  other  countries  were  also 
cited,  among  them  being  the  Frenchman  Antonius  Faber  (died 
1G24) ;  the  Spaniard  Antonio  de  Gomez,  professor  at  Salamanca 
(1st  half  of  the  1500  s);  such  German  Avriters  as  Andreas  Gail, 
"  the  German  Papinian  "  (Chancellor  of  the  Elector  of  Cologne ; 
died  1587),  and  particularly  the  Saxons,  Matthias  Berlichius  (pro- 
fessor at  Leipzig;  died  1638),  and  his  still  more  famous  and 
influential  successor,  the  learned  Benedictus  Carpzovius  (member 
of  the  Supreme  Court  and  professor  at  Leipzig;  died  1666).  The 
most  important  work  of  Carpzovius  was  the  "  Practica  nova  Im- 
perialis Saxonica  reruni  criniinalium  "  ;    a  Dutch  translation  of  it, 

him  was  fraudulently  obtained,  —  stolen  from  its  lawful  owner.  Wielant 
of  Ghent." 

307 


§.7.»A]      THE  RENASCENCE  AND  THE  REFORMATION       [PAHT  I,  TiTLE  IH 

made  witli  some  abridgements  l)y  Dr.  Didarik  van  Ilo^t'iidorf, 
a  judge  of  Rotterdam,  remained  authoritative  in  the  Netherlands 
even  longer  than  in  Germany,  because  of  its  intrinsic  worth  and  the 
method  of  its  presentation,  which  was  both  systematic  and  adapted 
to  the  needs  of  the  practice.  P'inally,  toward  the  end  of  the  1700  s, 
are  to  be  noted  as  no  less  authoritative  the  "  Meditationes  ad 
Constitutionem  Criminalem  Carolinam  "  already  mentioned,  by 
J.  S.  F.  Boehmer  (1704-1772)  ;  the  notes  on  the  work  of  Carpzo- 
vius,  by  the  same  WTiter;  the  manuals  of  Boehmer  and  Meisler, 
recommended  by  van  der  Linden  for  university  studies ;  and  the 
work  of  Quistorp,  and  others,  quoted  by  Meister,  and  after  him 
referred  to  as  authority  in  preference  to  his  own  work. 

It  must  not  be  forgotten,  with  regard  to  this  enumeration,  that, 
with  the  growth  of  less  drastic  principles,  and  more  reasonable 
scientific  conceptions,  many  of  the  older  writers  were  abandoned 
as  authorities,  and  there  arose  representatives  of  the  new  order, 
who  will  be  later  mentioned. 

Character  of  Criminal  Law  of  this  Period.  —  The  character  of  the 
substanti\e  criminal  law  (which,  as  derived  from  the  various  above- 
mentioned  sources,  prevailed  until  the  first  general  codification) 
naturally  resembled  in  many  particulars  the  criminal  law  of  other 
countries. 

Viewed  from  the  standpoint  of  form,  the  variety  of  sources  and 
the  independence  of  the  numerous  courts  resulted  in  numerous 
striking  inequalities  in  the  law,  which  could  be  obviated  only  by  a 
general  codification.  A  phenomenon  of  much  greater  significance, 
and  one  which  tended  to  become  even  more  widespread,  is  the  fact 
that,  owing  partly  to  the  instability,  incompleteness,  and  confusion 
of  the  sources,  there  was  an  ever-increasing  arbitrariness  in  the 
administration  of  the  criminal  law,  by  virtue  of  which  many  de- 
cisive questions  could  be  decided  "  at  the  discretion  of  the  judge." 
This  power  of  the  court  was  exercised  in  changing  and  alleviating 
the  ordinary  fixed  penalties  of  the  common  law,  or  written  law, 
whenever  there  appeared  "  great  and  notable  reasons."  In  some 
cases  the  judge  might  alter  the  method  of  capital  punishment  and 
increase  its  severity ;  in  others,  the  written  law  or  practice  left 
the  judge  the  choice  of  an  exceptional  penalty,  i.e.,  fine,  imprison- 
ment, lighter  corporal  punishment,  or  exile,  in  cases  where  the  of- 
fense was  not  serious  or  "  full  proof  "  of  the  offense  was  lacking. 
In  some  instances,  even  the  determination  of  an  act's  criminality 
was  lodged  in  the  court,  when  the  act  done  was  one  for  which  no 

308 


Chapter  XT]        OTHER  COUNTRIES  IN  THE  1500  S-1700  S        [§  59Ä; 

penalty  had  been  provided  in  the  written  law.  Now  and  then, 
contrary  to  the  old  but  well-acknowledged  rule,  the  infliction  of 
capital  punishment  for  acts  never  before  expressly  so  penalized  by 
any  law,  was  left  to  the  discretion  of  the  judge.  And  besides  this 
domination  of  the  judge's  discretion,  another  abuse  of  authority 
was  not  uncommon,  in  that  parties  accused  of  certain  crimes  either 
less  serious  in  nature  or  difficult  of  proof  (for  instance,  adultery) 
often  compromised  with  the  bailiffs  and  justices,  by  buying  off  the 
prosecution. 

The  main  feature  of  the  substantive  criminal  law  of  this  period 
was  its  almost  exclusive  domination  by  the  passion  to  deter  from 
crime  by  severity  and  cruelty.  Capital  punishment  was  em- 
ployed on  a  large  scale  and  for  all  kinds  of  crime ;  and  this  penalty 
was  inflicted  in  various  cruel  ways,  —  hanging,  beheading,  break- 
ing on  the  wheel,  drowning,  burning,  even  quartering,  —  sometimes 
prescribed  by  written  law,  sometimes  left  to  the  judge's  discretion. 
Corporal  punishment  —  sometimes  in  the  form  simply  of  torture, 
though  frequently  carried  to  the  extent  of  maiming  members  of 
the  body  or  destroying  the  organs  of  senses  —  was  frequently  em- 
ployed, either  by  way  of  increasing  the  severity  of  capital  punish- 
ment or  of  accompanying  the  penalty  of  exile  or  of  infamy.  The 
complete  or  partial  confiscation  of  property  was  also  a  frequent 
penalty.  Confinement  in  prisons  played  a  minor  part ;  the  rule 
ran  that  "  the  dungeon  exists  for  detention,  and  not  for  punish- 
ment "  ;  but  one  who  suffered  detention  in  the  dungeons  was  often 
exposed  to  everything  from  which  even  a  cruel  man  would  protect 
his  beasts  (Dr.  Schorer).  In  addition  to  all  these  penalties  were  the 
exquisite  cruelties  of  the  rack,  i.e.,  "  the  more  thorough  examina- 
tion ",  the  practice  of  questioning  prisoners  (in  the  so-called  "  ex- 
traordinary "  procedure)  for  the  purpose  of  inducing  their  confes- 
sion. Through  a  misunderstanding  (due  to  a  printer's  error  in 
one  of  Philip's  Ordinances),  the  rack  was  employed  for  this  pur- 
pose, not  only  in  cases  of  overwhelming  evidence,  but  also  (con- 
trary to  the  original  rule)  in  cases  where  the  evidence  was  altogether 
insufficient.  —  Prosecutions  for  witchcraft,  and  the  burning  and 
banishing  of  witches,  were  another  feature  of  the  times  —  a  terrible 
demonstration  of  the  effect  of  superstition.  And  this  entire  sys- 
tem of  cruelty  and  ignorance  was  upheld  in  subtle  essays,  sup- 
ported by  the  most  learned  authorities,  and  administered  by  the 
most  venerable  and  conscientious  men. 

Yet  it  must  never  be  forgotten  that  in  comparison  with  other 

309 


5  '}\)lc]     THE  RENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

countries  the  Netherlands  led  in  the  li()[)('  for  better  things.  The 
first  authoritative  voice  raised  aj^ainst  prosecutions  for  witch- 
craft was  that  of  the  physician,  Johannes  Wier  {I'Ay.i)  of  Arnhem. 
'i'lie  medical  faculty  of  Leyden  also  took  its  stand  against  the 
practice.  Although  witches  were  burned  in  German  towns  until 
the  middle  of  the  1700  s,  the  last  one  executed  in  the  Netherlands 
was  in  1597,  the  last  one  exiled  in  1610.  Shortly  afterwards  S. 
van  Leeuwen  publicly  denounced  prosecutions  for  witchcraft  as  a 
mark  of  superstition.  The  rack,  it  is  true,  was  not  formally 
abolished  until  1798,  and  the  authorities  contrived  to  maintain  it 
even  later;  in  1798,  it  was  defended  by  one  Voorda,  as  indispen- 
sable, "  unless  the  common  welfare  was  to  be  sacrified  to  rogues  and 
villains  "  ;  but  by  that  time  the  institution  was  already  thoroughly 
discoimtenanced.  Confiscation  of  property  was  abolished  in 
Holland  in  1732,  in  Zealand  in  1735,  and  in  Gelderland.  As  early 
as  the  end  of  the  1500  s  and  the  early  part  of  the  1600  s  punishment 
by  imprisonment  was  introduced;  these  "rasp-houses"  and 
houses  of  correction,  originally  designed  for  youthful  criminals, 
were  later  on  used  for  adults  also ;  and  "  steady  labor  "  w^as  made  a 
part  of  the  penalty,  "  as  a  means  of  bettering  their  lives."  In 
general,  however,  the  Netherlands  during  this  period  made  a 
very  poor  showing  in  the  field  of  criminal  law. 

The  Reform  Movement  of  the  Later  1700  s.  —  In  the  second  half 
of  the  1700  s,  a  strong  movement  for  reform  developed  throughout 
Europe.  Before  long,  it  led  to  the  diminution  of  the  worst  abuses, 
and,  toward  the  end  of  the  century,  destroyed  them  altogether. 
But  its  effect  on  criminal  law  and  procedure  was  not  completed 
until  well  on  in  the  1800  s.  This  reform  movement  started  from 
below,  in  a  suddenly-awakened  popular  opinion,  and  was  directed 
against  the  unfair  methods  and  the  subtle  learning  of  the  authori- 
ties in  the  administration  of  criminal  justice.  It  soon  gained  a 
foothold  in  all  circles  of  thought  and  among  all  nationalities.  Its 
origin  may  be  ascribed  primarily  to  two  events,  which  made  an 
overwhelming  impression  on  public  opinion.  The  first  was  the 
conviction  and  execution  of  Jean  Calas,  in  the  criminal  court  of 
Toulouse ;  falsely  accused  of  the  murder  of  his  son,  he  w^as  con- 
demned to  death  and  broken  on  the  wheel ;  Voltaire,  in  1752,  ex- 
posed this  case  to  the  world  in  all  its  injustice.-     The  second  event 

^_For  the  celebrated  case  of  Calas,  Coquerel,  "Jean  Calas  et  sa  famille" 
(1858)  ;  Hertz,  "Voltaire  und  der  französische  Strafrechtspflege  im  18'^° 
Jahrhundert"  (1887),  p.  157.  In  consequence  of  Voltaire's  efforts,  the 
judgment  against  Calas  was  afterwards  (1765)  set  aside. 

310 


Chapter  XI]  OTHER   COUNTRIES   IN   THE    1500  S-1700  S  [§  ödk 

was  the  publication  of  Beccaria's  treatise,  "  Dei  delitti  e  delle  j^ene," 
which  protested  against  the  death  penalty,  corporal  punishments, 
the  rack,  and  other  iniquities  of  the  old  system  of  criminal  justice. 
This  work,  though  scientifically  not  well  thought  out,  won  a  hear- 
ing by  the  fervor  of  its  style.  It  demands  were  immediately 
echoed  on  all  sides.  It  was  "  a  cry  of  distress  uttered  from  the 
conscience  of  mankind  ",  and  it  was  read  in  almost  every  Euro- 
pean language. 

This  reform  movement,  however,  was  merely  one  of  the  phe- 
nomena of  the  so-called  era  of  "  Enlighteinnent  "  ("Aufklärung  "), 
when  the  contest  between  freedom  of  thought,  on  the  one  hand, 
and  tradition  on  the  other,  was  being  waged  along  so  many  differ- 
ent lines.  The  protest  against  cruelty  of  the  criminal  law  found 
support  in  the  spirit  of  the  times.  The  reform  movement  was 
largely  instituted  and  guided  by  the  representatives  of  the  phil- 
osophical school,  then  becoming  active  in  the  entire  field  of  natural 
law.  Chr.  Thomasius  (1665-1728),  in  particular,  by  his  doctrine 
of  discrimination  between  law  and  morality,  and  his  dissertations 
against  the  practices  of  witchcraft,  the  rack,  and  degrading  punish- 
ments, may  be  considered  the  direct  forerunner  of  this  entire  period. 
In  the  second  half  of  the  1700  s  its  leaders  were  Rousseau,  Mon- 
tesquieu, Voltaire,  and  their  sympathizers,  the  encyclopiedists 
and  the  humanists,  in  France,  Wieland  and  the  school  of  \YoHf 
(Engelhard,  1750)  in  Germany,  Filangieri  in  Italy.  They  arraigned 
the  antiquated  criminal  law  at  the  bar  of  Reason.  Voltaire  took 
personal  interest  in  obtaining  freedom  for  numerous  innocent 
victims  of  the  law%  and  his  example  was  imitated.  Criminal 
justice  became  a  prominent  topic  of  discussion  in  scientific  and 
literary  circles.  A  society  of  economists  at  Bern  ottered  a  prize 
for  the  best  essay  on  the  great  subject  (1783) ;  the  essay  by  Globig 
and  Huster  was  the  successful  one  among  forty-four  competitors. 
Enlightened  princes,  advised  by  wise  statesmen,  sought  to  embody 
the  new  ideas  in  laws  and  ordinances,  —  Catherine  II  of  Russia, 
in  her  Instruction  to  the  Commission  on  a  Draft  Penal  Code 
(1768)  ;  Leopold  II  of  Tuscany,  in  a  Penal  Code  abolishing  the 
death  penalty  (1786) ;  Frederick  II  of  Prussia,  in  several  ordinances 
reforming  criminal  procedure  (1780)  ;  Maria  Theresa  of  Austria, 
whose  eft'orts  (advised  l)y  Sonnenfels)  resulted,  however,  only  in 
a  new  code  (the  Theresia na,  1768)  imbued  with  the  old  spirit,  and 
her  son  Joseph  II,  in  a  Penal  Code  (1787)  which  became  the  basis 
for  future  advances.     But  much  of  all  this  effort  was  only  transi- 

311 


§  ")!)/i;]     THE  IlENASCENCE  AND  THE  REFORMATION      [Part  I,  Title  III 

tory  and  iiiadoqiiiito  in  its  effects.  Xot  until  the  tremendous 
j)()litieul  shock  of  the  French  Revolution  was  felt  did  the  old  crimi- 
nal system  begin  really  to  (Tumble  away. 

The  new  thought  penetrated  but  slowly  in  the  Netherlands.  It 
had  its  sui)porters  (such  as  Schorer)  and  its  prudent  but  sympa- 
thetic advocates  (such  as  Calhoen).  It  had  also  its  opponents  (such 
as  Barels  and  Voorda),  warning  all  against  "  the  errors  of  the  new- 
fashioned  philanthropy."  But  the  spirit  of  the  times  had  rendered 
the  philosophy  of  the  law  attractive.  Particularly  after  the  rise 
of  new  scientific  methods  in  law  in  Germany,  criminal  authorities 
of  a  very  different  quality  from  those  of  former  times  had  become 
available.  As  J.  M.  Kemper  expresses  it,  "  the  appeal  to  philosoph- 
ical German  and  French  writers  was  already  being  voiced  before 
the  courts  almost  as  often  as  one  had  heard  exclusively,  in  former 
years,  the  names  of  Damhouder,  INIatthseus,  and  Carpzovius." 
At  first,  the  manuals  by  Quisdorp,  Boehmer,  and  others,  before 
mentioned,  were  cited.  Later,  the  works  of  Klein,  Kleinschrod, 
Grolman,  and  Feuerbach,  the  founders  of  the  new  German  science 
of  criminal  law,  replaced  the  former  philosophers.  But  legisla- 
tion and  unity  of  legislation  were  chiefly  necessary  for  the  admin- 
istration of  justice  and  the  advancement  of  legal  science.  These 
were  made  possible  by  the  Dutch  revolution  of  1795. 


312 


TITLE   IV.     THE   FRENCH   REVOLUTIONARY 

PERIOD 


CHAPTER     XII.     THE    FRENCH    REVOLUTIONARY    RE- 
FORMS. 

CHAPTER  XIII.     THE     GERMAN      REFORMS      OF      THE 

FRENCH  REVOLUTIONARY 

PERIOD. 


313 


Chapter  XII 

THE  FRENCH  REVOLUTIONARY  REFORMS» 

§60a.    Reform  Movements  on  the   I   §606.    The  Code  of  1791,  and   the 
Eve  of  the  Revolution.      |  Code  of  Brumaire. 

§  60a.  Reform  Movements  on  the  Eve  of  the  Revolution.  — 
It  does  indeed  seem,  when  we  study  our  criminal  law  of  the  Old 
Regime,  and  compare  it  with  that  of  the  last  centuries  of  the 
Roman  Empire  and  the  first  centuries  of  the  ]\Iiddle  Ages,  that 
civilization  had  made  no  progress  on  the  subject  of  penal  law,  — 
had  in  fact  remained  stationary.  Throughout  it  is  marked  by 
the  same  defects,  in  each  of  these  epochs.  Punishments  are 
unequal ;  they  vary  according  to  the  status  or  rank  of  the  offenders 
rather  than  the  nature  of  the  crime.  Punishments  are  also  cruel 
and  barbarous  in  their  method  —  the  base  of  the  system  is  the 
death  penalty,  and  a  prodigal  use  of  bodily  mutilations.  Further- 
more, punishments  are  variable  in  discretion ;  crimes  are  loosely 
defined;  and  the  individual  has  no  security  against  excess  of 
severity  in  the  State's  repression  of  crime.  Finally,  ignorance, 
prejudice,  and  emotional  violence  breed  imaginary  crimes ;  and 
the  scope  of  penal  law  extends  beyond  the  regulation  of  social 
relations  and  trespasses  even  upon  the  domain  of  conscience. 

It  is  well  to  recall  these  shortcomings,  so  that  we  may  better 
understand  the  progress  which  has  taken  place  and  the  benefits 
for  which  we  are  here  indebted  to  the  French  Revolution.  In  fact, 
though  it  is  not  incorrect  to  say  that  the  whole  of  the  old  French 
civil  law  persisted  (with  some  modifications)  in  the  present  civil 
Code,^  it  can  be  affirmed,  nevertheless,  that  the  modern  penal  law 

![§§  60a,  606  =  §§67,  69-74,  pp.  118,  122-1.31.  of  Vol.  I  of  Professor 
R.  Garraud's  "  Traite  theorique  et  pratique  du  droit  penal  frangais " 
(2°  ed.,  1898).  For  this  author  and  work,  see  the  Editorial  Preface.  These 
sections  replace  §  60  of  Professor  i>nn  Bars  text.  —  Ed.] 

2  Cf.  Valette,  "De  la  persistanee  de  ensemble  du  droit  civil  frangais 
pendant  et  apres  la  Revolution  de  17S9"  (Melanges.  Vol.  II,  p.  250)  ;  Paul 
Viollet,  "Precis  de  I'histoire  du  droit  frangais,"  p.  206. 

315 


§  GOo]       THE    FRENCH   REVOLUTIONARY   PERIOD       [Pa fit  T,   Titlk   TV 

has  completely  broken  with  the  old  penal  law,  and  that  a  compari- 
son Ix'twccn  the  two  consists  mainly  in  contrasts.  This  idea  the 
eminent  Boitard  emphasized  in  his  first  chapter:  ^  "  Our  new  laws- 
are  not,  as  are  our  civil  laws,  the  reproduction,  more  or  less  faith- 
ful, more  or  less  exact,  of  principles  accepted  in  former  times. 
In  the  penal  law,  almost  everything  is  new;  almost  everything  has^ 
felt  keenly  the  influence  of  the  times,  the  customs,  and  the  revolutions.^"^ 
To  be  convinced  of  this,  it  would  suffice  to  glance  at  the  passage  of 
Pothier  '  in  which  the  learned  author  sums  up  the  criminal  law  of 
the  late  1700  s. 

In  the  IGOO  s  public  opinion  had  not  shown  itself  hostile  to  the 
criminal  system  of  the  times.  Its  cruelty,  its  inequality,  it;^ 
arbitrariness,  are  all  deemed,  by  the  best  minds,  to  be  necessary 
harshness.^  In  the  1700  s,  the  point  of  view  begins  to  change. 
The  Revolution,  with  its  alleviations  of  the  penal  law,  was  only 
efi'ecting  reforms  already  ripe,  because  they  were  demanded  by 
public  opinion.  How  is  this  change  of  attitude  to  be  explained  ? 
It  was  due  in  part  to  the  philosophic  movement  which  marked  the 

'  [Boitard,  "Lemons  sur  les  codes  penals  et  d'instruction  criminelle", 
1st  ed.,  Paris,  1836-9;   13th  ed.,  1896.  —  Ed.] 

*  I  am  well  aware  that  the  eminent  criminalist  Fausfin-Helie,  in  his: 
notable  preface  to  Boitard'' s  "  Le§ons  sur  les  Codes  penals  et  d'instruction 
criminelle"  has  vigorously  disputed  this  judgment  of  the  professor  whose 
work  he  was  editing.  Nonetheless,  it  is  substantially  correct.  The  penal 
system  of  our  modern  law  bears  no  resemblance  to  the  penal  system  of  the 
ancient  law.  As  for  the  method  of  prosecution,  it  is  only  the  irreducible 
minimum  which  has  come  down  through  the  centuries.  But  the  dross  of 
the  old  system,  the  crimes  against  religion,  etc.,  have  been  left  out  of  the 
new  law.  The  comments  of  Faustin-Helie  are  correct  only  in  their  appli- 
cation to  criminal  procedure,  which  is  indeed  too  greatly  saturated  even 
to-day  with  the  spirit  of  past  times. 

*  "Traite  de  la  procedure  criminelle,"  section  V,  §  6. 

^  We  must  remember,  of  course,  that  the  repressive  methods  of  those 
days  corresponded  to  conditions  of  criminality  altogether  different  from 
ours.  Studies  of  the  history  of  criminality  have  made  little  headway ; 
but  we  have  here  a  rich  field  for  the  historian  and  the  moralist.  From 
this  standpoint,  three  facts  at  least  seem  to  stand  out,  in  the  light  of  the 
information  which  we  possess  on  the  condition  of  France  in  the  1400  s, 
1500  s,  and  1600  s  :  1st,  Predominance  of  violent  criminality  over  cunning- 
criminality  ;  2d,  Less  criminal  individualism  than  to-day :  offenses  are 
more  often  committed  in  a  band  or  a  group  ;  3d,  As  far  as  we  can  estimate 
the  importance  of  the  criminality  of  those  times,  in  the  absence  of  statistics, 
we  may  affirm  that  the  number  of  crimes  was  greater  at  that  epoch  than 
in  our  days  {Berriat  Saint-Prix,  "Rev.  etrang.",  1845,  p.  461).  On  the 
state  of  ancient  criminality:  Tarde,  " L'archeologie  criminelle  en  Pe- 
rigord",  in  "Etudes  penales  et  sociales",  p.  193;  Marty,  "Recherches 
sur  l'archeologie  criminelle  dans  I'Yonne"  ("Arch,  d'anthr.",  1895,  p. 
381) ;  A.  Corre  and  P.  Aubry,  "Documents  de  criminologie  retrospective  "" 
(Arch.,  1894,  pp.  181,  312,  684).  Cf.  Clement,  "La  police  sous  Louis  XIV", 
1886;  Flechier,  "Memoire  sur  les  grands  jours  d'Auvergne";  Taine, 
*'Origines  de  la  France  contemporaine,  L'ancien  regime",  Vol.  I,  passim.    . 

316 


Chapter  XII]      THE    FRENCH    REVOLUTIOXARV    REFORMS  [§  60a 

second  half  of  the  1700  s,  and  rested  on  two  new  itieas  :  reason  and 
humanity.  As  early  as  1721,  Montesquieu,  in  the  "  Lettres 
persanes",  had  discoursed  on  the  nature  and  the  efficacy  of  pun- 
ishments ;  then,  in  book  G,  chap.  12,  of  the  "  Esprit  des  lois  ",  he 
expounded  the  true  principles  of  a  penal  law.  But  it  was  reserved 
for  Beccaria,  a  disciple  of  Montesquieu,  to  give  to  Italy  the  glory 
of  taking  the  initiative  in  the  movement  of  reform.  In  all  epochs 
Italy  has  been  the  classical  land  of  criminal  law.  Of  the  works 
which  contributed  to  make  her  fame  in  this  period,  none  has  influ- 
enced the  ideas  and  usages  of  Europe  to  an  extent  comjjarable  with 
Beccaria's  "  Treatise  on  Crimes  and  Penalties",  which  appeared  in 
1706.^  Beccaria  was  the  first  to  formulate  precisely  the  criticisms 
of  the  old  system  and  to  propose  a  plan  of  reform.  lie  drew  up,  as 
it  were,  a  declaration  of  humanity's  claims  against  the  criminal  law. 
Beccaria's  doctrines  were  immediately  commented  upon  and 
cle\eloped  in  Erance.  Rousseau,  to  be  sure,  busy  mainly  with 
questions  of  morals  and  of  politics,  gave  little  attention  to  criminal 
law :  he  devoted  to  it,  in  passing,  a  word  or  two  in  his  "  Contrat 
social  " ;  but  even  this  much  was  destined  to  have  a  great  influ- 
ence on  penal  legislation.  Villemain  has  pointed  out,  as  a 
characteristic  trait  of  the  years  just  preceding  the  Revolution, 
"  philosophy's  invasion  of  business,  of  government,  of  law,  — 
speculative  innovation  transformed  into  active  and  real  innova- 
tion." At  the  head  of  this  movement  we  find  Voltaire  ;  he  writes 
*'  that  he  is  doing  nothing  but  read  trials  "  ;^  and  he  published  a 
commentary  on  the  "Traite  des  delits  et  des  peines."     The  learned 

'  Beccaria,  "Dei  delitti  e  delie  pene",  Munich,  1766,  in  octavo.  Xo 
treatise  on  criminal  law  has  been  reprinted  so  often.  A  French  edition 
of  this  work  was  published  under  the  title:  "Des  delits  ot  des  peines", 
new  edition,  with  an  introduction  and  a  commentary  by  Faustiu-Helie, 
1856.  See  "Beccaria  et  le  droit  penal,  Essai",  by  Cesare  Caiitu,  trans- 
lated, annotated,  and  prcn-eded  by  a  preface  and  an  introduction  l)y 
J ulea  Lacointa  and  (\  Dclpcch  (1SS(),  Paris,  Finnin-Didot).  Tliis  treatise 
on  crimes  and  punishments  tou(^hes  or  discusses  thi>  most  important  ques- 
tions of  criminal  law,  but  more  particnilarly  it  opposes  the  death  penalty 
and  the  use  of  torture.  It  secures  jjroper  limitations  for  the  repressive 
system  by  the  principle  of  reducing  punishments  to  tlu^  severity  neces- 
sary for  maintaining  jjublic  safety.  It  may  be  said  that  the  classical 
school  of  criminal  law  in  th(>  1800  s  was  th(>  product  of  this  marvellous 
little  book  of  Beccaria.  Has  this  school  finished  its  historical  cyfle,  as 
some  now  maintain?  It  is  surely  true,  at  all  events,  that  penal  law  is 
lieing  transformed,  and  that  the  ideas  of  Beccaria  are  being  abandoned 
on  many  points  to-day. 

*  See  what  is  said  by  Esnici»,  "History  of  Continental  Criminal  Pro- 
cedure", p.  362  [Vol.  V  of  this  Series]  on  the  ideas  and  works  of  the  three 
men  who  did  most  among  the  philosophers  for  the  reform  of  criminal  law, 
Montesquieu,  Beccaria,  and  Voltaire. 

317 


§  (iOaj      THE    FRENCH    REVOLUTIONARY    PERIOD        (Part  I,   TiTLP:    IV 

Afjulemies  interested  themselves  in  the  su})ject ;  they  assigned  for 
prize-essay  e(>mi)etiti()ns  "  this  important  subject  ",  as  Boucher 
d'Argis  called  it ; "  among  the  j)rize-winners  in  these  competitions 
were  men  who  later  played  an  important  role  in  the  Revolution, 

—  and  we  note  among  these  names,  not  without  some  surprise, 
Robespierre  and  Marat.^°  The  movement  spread  to  the  bench 
and  the  bar.  Attorney-General  Servan  reproduced  the  ideas  of 
Beccaria  in  his  address  of  1700  on  the  "  Administration  de  la  jus- 
tice criminelle  ",  which  caused  such  a  great  stir.^^  The  penal 
institutions  of  the  time  found  defenders  only  among  a  few  jurists 
who  were  behind  the  times.^- 

^  "Observations  sur  les  lois  criminelles,  Avant-propos",  p.  8. 

"  Robespierre,  advocate  at  Ai-ras,  was  the  author  of  a  "Memoire  sur  le 
prejuge  qui  etend  ä  la  famille  du  coupable  la  honte  des  peines  infamantes", 
an  essay  awarded  a  prize  by  the  Academy  of  Metz  in  1784.  Marat  was  the 
author  of  a  "Plan  de  legislation  criminelle"  (1st  ed.,  1780;  2d  ed.,  1790). 

"  This  address  is  to  be  found  in  Volume  IV,  p.  332,  of  the  first  series  of 
"Barreau  frangais",  published  by  Clair  and  Clapier.  One  eloquent  and 
courageous  passage  in  that  beautiful  address  has  become  classical :  "Lift 
your  eyes",  said  he  to  his  colleagues,  "and  see  above  your  heads  the 
image  of  oirr  Lord,  himself  once  an  innocent  man  on  trial.     You  are  men, 

—  be  human.  You  are  judges,  —  be  just.  You  are  Christians,  —  be  merci- 
ful.' Men,  judges.  Christians,  whoever  you  be,  show  consideration  to  the 
unfortunate."  Cf.  in  Vol.  Ill,  p.  77,  of  the  same  work  a  "Memoire  pour 
trois  hommes  condamnes  ä  la  roue",  published  by  Chief  .Justice  Du  pat  y, 
in  which  the  author  criticises  \igorously  the  inquisitorial  procedure  and 
the  system  of  legal  proofs ;  this  memoir  was,  however,  suppressed  by  a 
decree  of  the  Paris  Parliament,  of  August  11,  1786,  on  motion  of  the  then 
attorney-general,  Louis  Seguier.  Esniein,  op.  cit.,  p.  374,  gives  a  sum- 
mary oi'  this  curious  argument,  delivered  on  the  very  eve  of  the  Revolu- 
tion by  a  high  legal  official. 

^  Jousse  and  JNIuyart  de  Vouglans,  the  two  leading  criminalists  of  the 
epoch,  opposed  the  proposed  reforms.  The  latter  even  wTOte  a  refutation 
of  the  "Traite  des  delits  et  des  peines"  of  Beccaria,  under  the  title: 
"Lettre  contenant  la  refutation  de  quelques  principes  hasardes  dans  le 
traite  des  delits  et  des  peines",  Geneva,  1767.  To  the  psychologist  this 
work  reveals  a  strange  state  of  mind  in  the  most  distinguished  criminalist 
of  his  time.  Muyart  de  Vouglans  ob\T[ously  does  not  understand  Bec- 
caria. He  regards  him  as  a  lunatic  (p.  22).  What  astonishes  jSIuyart 
most  is  to  find  a  work  on  criminal  legislation  which  is  not  primarily  a 
technical  book  devoted  to  positive  law  (p.  25).  As  for  the  proposals  which 
he  discovers  in  the  treatise  of  Beccaria  and  which  he  points  out  with  in- 
dignation to  public  opinion  as  so  many  social  heresies  (pp.  6  to  17),  they 
are  the  very  truths  which  were  to  become  the  a.xioms  of  criminal  justice : 
equality  before  the  law,  exemption  of  the  accused  from  compulsory 
oath,  and  the  abolition  of  torture. 

Jousse,  in  the  preface  of  his  "Traite  de  la  justice  criminelle",  p.  64, 
expressed  himself  thus:  "The  'Traite  des  delits  et  des  peines'  tends  to 
establish  a  system  of  the  most  dangerous  kind.  It  reveals  novel  ideas 
which,  if  they  were  to  be  adopted,  would  do  nothing  less  than  o^•erthrow 
the  laws  hitherto  accepted  by  the  most  civilized  nations ;  they  would 
injure  religion,  morals,  and  tlie  sacred  maxims  of  the  government."  In 
such  terms,  however,  men  have  always  defended  existing  institutions, 
which  they  considered  fundamental,  and  fought  the  reform  of  them. 
See  on  this  point :   Esmein,  op.  cit.,  p.  370. 

318 


Chapter  XII]      THE    FRENCH   REVOLUTIONARY   REFORMS  [§  60a 

But  none  of  these  defenses  found  favor  in  public  opinion.  The 
legal  system,  even  before  the  end  of  the  Old  Regime,  itself  had 
begun  to  feel  the  need  of  reform.  In  Russia,  Catherine  II  had 
shown  encouragement  to  the  philosophers,  and  gave  instructions 
for  drafting  a  criminal  code.  In  Germany,  Frederick  II  and  Joseph 
II,  influenced  by  the  ideas  of  the  encyclopedists,  had  introduced 
some  radical  reforms  in  the  cruel  system  then  prevailing;  the 
former  had  begun  his  reign  by  the  abolition  of  torture ;  the  latter 
promulgated  a  penal  Code  in  which  the  death  penalty  was  omitted, 
save  for  military  crimes.  In  Tuscany,  also,  the  Grand  Duke 
Leopold  suppressed  the  death  penalty.  In  France  itself,  under 
the  same  influence,  partial  and  gradual  mitigations  were  intro- 
duced into  the  criminal  law.  A  royal  declaration  of  August  24, 
1780,  abolished  the  preliminary  torture.  On  the  eve  of  the  Revo- 
lution (^lay  8,  1788)  an  edict  was  issued,  announcing  a  general 
reform  in  criminal  procedure,  and,  in  the  meantime,  repealing 
"  several  abuses  "  which  pressed  for  a  remedy :  ^^  1st,  the  use  of 
the  culprit's  kneeling-stool  was  forbidden;  2d,  judgments  of 
conviction  must  state  the  reasons  therefor ;  3d,  the  abolition  of  the 
preliminary  torture  was  confirmed,  and  torture  after  judgment  was 
abolished  ;  4th,  sentences  involving  capital  punishment  were  to  be 
executed,  as  a  rule,  only  a  month  after  confirmation  ;  5th,  persons 
acquitted  were  given  the  right  to  reparation  for  injury  to  repute. 
This  edict  indeed  was  not  carried  into  effect  ^^ ;  but  it  showed  that 
the  reforms  were  ripening,  and  that  it  remained  only  for  the  will 
of  the  nation  to  achieve  them.  Public  opinion  revealed  a  unanim- 
ity of  this  sort  on  no  others  of  the  many  questions  agitated  at  this 
period.  In  the  reports  made  from  the  various  provinces  to  the 
States-General,  we  find  already  a  demand  for  the  reforms  which 
the  Constitutional  Assembly  was  to  realize, —  reforms  embodying 
the  ideas  of  the  philosophers  of  the  1700  s:  1st,  equality,  indi- 
viduality, and  mitigation  of  the  penal  system ;  2d,  suppression  of 
discretionary  powers  of  the  judge,  both  in  the  definition  of  criminal 
acts  and  of  the  determination  of  punishments ;  3d,  abolition  of 
crimes  against  religion  and  morals ;  4th,  publicity  of  procedure ; 
5th,  assistance  of  counsel ;  Gth,  abolition  of  the  accused's  com- 
pulsory oath ;  7th,  duty  to  state  the  grounds  for  judgment,  and 
to  declare  them  publicly;  8th,  the  institution  of  the  jury.     Such, 

'^  The  text  will  be  found  in  Isainboi,  "Aiicicanes  lois".  Vol.  XXVIII, 
p.  527. 

"  See  on  this  point,  Esmein,  op.  cil.,  p.  397. 

319 


§  {M)b\       TUE    FUENCII    UEVOLUTIONARY    PERIOD       [Pakt  I,   Title   IV 

in  tlu'ir  main  outliiios,  were  the  ideas  which  were  to  serve  as  a  basis 
for  the  new  criminal  hiw.'"' 

§  go/a  The  Code  of  1791,  and  the  Code  of  Bnunaire.  —  The 
work  (lone  by  the  Constitntional  Asseml)ly  in  the  domain  of  penal 
law  was  of  a  double  sort.  In  the  first  place,  it  determined  to  place 
on  record  the  new  principles  formulated  for  the  penal  system  by 
the  philosoi)hy  of  the  1700  s.  In  the  next  place,  it  set  about  real- 
izing these  principles  in  the  administration  of  justice,  and  codify- 
ing the  law. 

The  principles  w^ere  contained  in  the  Declaration  of  the  Rights 
of  INIan,  of  August  20,  1789,  and  in  a  few  other  enactments,  espe- 
cially the  decrees  of  January  21,  1790,  and  of  August  16  to  24, 
1790.  According  to  the  terms  of  Art.  2  of  the  Declaration  of 
Rights,  the  aim  of  every  political  society  is  "  the  preservation  of 
the  natural  and  inalienable  rights  of  man."  This  was  a  principle 
borrowed  from  the  theories  of  the  "  contrat  social  "  ;  its  corollary 
w^as  that  the  State  power  ought  and  can  concern  itself  only  in 
maintaining  "  good  order  "  in  the  relations  of  men  among  them- 
selves. Hence,  the  two  following  consequences  :  1st,  As  to  crimes : 
"  The  law  has  the  right  to  prohibit  only  actions  harmful  to  so- 
ciety." Moreover,  no  person  is  to  be  interfered  with  on  account 
of  his  opinions,  even  on  the  subject  of  religion,  provided  their 
expression  does  not  in  any  way  disturb  public  order.  With  the 
recognition  of  this  sacred  principle  of  liberty  of  conscience  there 
disappeared  all  the  prosecutions  which  our  early  lawyers  called 
"  crimes  of  lese  majeste  against  God  ",  such  as  blasphemy, 
heresy,  sorcery,  etc.  2d,  As  to  j)enalties :  "  The  law^  shall  inflict 
only  such  punishments  as  are  strictly  and  clearly  necessary." 
To  harmonize  the  penal  system  w^ith  these  principles,  the  Con- 
stitutional Assembly  strove  to  remove  all  the  inconsistent  features 
of  our  old  criminal  system.  Punishments  had  been  determined 
according  to  the  judge's  discretion;  so  the  Assembly  laid  down, 
in  Art.  8  of  the  Declaration,  that  "  no  person  shall  be  punished 
except  by  virtue  of  a  law  enacted  and  promulgated  previous  to  the 
crime  and  applicable  according  to  its  terms."  Penalties  had  been 
unequal ;  so  the  Assembly  decreed,  in  Art.  1  of  the  law  of  January 
21,  1790,  "  that  offenses  of  the  same  nature  shall  be  punished  by 
the  same  kind  of  penalties,  whatever  be  the  rank  and  the  station  of 

'*  Cf.  A.  Desjardins,  "Les  cahiers  des  Etats  generaux  en  1789  et  la 
legislation  criminelle"  (Paris,  1883).  See  also:  Esmein,  op.  cit.,  pp.  397 
to  402. 

320 


Chapter  XII]      THE    FRENCH   REVOLUTIONARY   REFORMS  [§  60b 

the  offender  " ;  and  Title  1  of  the  Constitution  of  September  3, 
1790,  gave  to  this  principle  the  status  of  a  constitutional  law. 
Punishments  had  not  always  been  personal  {i.e.  confined  to  the 
offender  himself) ;  so  the  law  of  January  21,  1790,  declared  that 
"  neither  the  death  penalty  nor  any  infamous  punishment  whatever 
shall  carry  with  it  an  imputation  upon  the  offender's  family  ",  since 
"  the  honor  of  those  who  belong  to  his  family  is  in  no  wise  tarnished  ", 
and  by  the  same  Article,  the  relatives  of  the  offender  "  shall  con- 
tinue to  be  eligible  to  all  kinds  of  professions,  employments,  and 
offices."  The  penalty  of  general  confiscation  of  property  was 
abolished.  Punishment  was  not  to  outlive  the  ofl'cnder's  death ; 
not  only  were  there  to  be  no  more  proceedings  against  offenders 
dying  before  trial,  but  the  corpse  of  an  executed  man  was  to  be 
given  back  to  his  family  on  request.  The  record  of  his  death  was 
in  no  wise  to  mention  the  mode  of  death. 

Having  thus  proclaimed  the  basic  principles  of  penal  law,  it 
remained  to  give  effect  to  them.  The  ensuing  legislation  for  the 
system  of  prosecution  and  detection  was  divided  into  three  parts, 
general  (or,  municipal),  correctional,  and  detective;  correspond- 
ing to  the  three  classes  of  offenses,  general  (or,  municipal)  offenses, 
correctional  offenses,  and  offenses  against  public  security.  To 
mark  outwardly  this  distinction,  the  Constitutional  Assembly 
enacted  two  separate  Codes,  one  for  crimes  in  general,  the  other 
for  misdemeanors;  the  Penal  Code  of  October  6,  1791,  was  for 
crimes  ;  the  law  of  July  22,  1791,  for  misdemeanors.  This  system 
has  some  disadvantages,  to  which  we  shall  return. 

The  Code  of  October  6,  1791,  is  exclusively  a  penal  code.^  It 
is  in  two  parts,  each  subdivided  into  titles  and  sections.  The 
first  part,  entitled  "  Sentences  ",  includes  the  general  i)enal  law, 
and  is  divided  into  seven  titles.  These  titles  deal  with :  1st, 
criminal  punishments  (tit.  1),  which  are  death,  labor  in  chains, 
reclusion  (in  a  penitentiary),  confinement  (shutting  up  the  offender 
in  a  lighted  place  without  chains  or  bonds),  detention,  transporta- 
tion, civic  degradation  and  the  "  carcan  "  ;  2d,  aggravation  of  pen- 
alties, applicable  to  second  offenders  (tit.  2)  (the  recidivist  first 
suffers  the  ordinary  punishment  inflicted  for  the  new  crime  which 
he  has  committed,  and  is  then  transferrec.  for  the  rest  of  his  life 
to  a  place  appointed  for  the  transportation  of  criminals)  ;  3d,  the 
manner  of  enforcing  sentences  against  those  who  fail  to  appear 
for  trial  (tit.  3)  ;   4th,  the  legal  consequences  of  sentences  (tit.  4)  ; 

'  Such  is,  moreover,  the  name  under  which  it  has  always  been  liuown. 

321 


§  i>{)h\      THE    FRENCH    REVOLUTIONARY    PERIOD         [Paht    I,   TiTLE    IV 

5tli,  a^H'  of  the  ofl'ender,  as  afrcctinj^  the  nature  ami  duration  of  the 
puiiishnieut  (tit.  5)  ;  0th,  periods  of  limitation  for  erimes  (tit. 
())  ;  7tli,  the  rehabilitation  of  convicted  offenders  (tit.  7).  The 
second  part  of  this  Code,  entitled  :  "  Crimes  and  their  punish- 
ment ",  embraces  the  definitions  of  specific  crimes,  and  is  sub- 
di\ided  into  two  titles ;  the  first  deals  with  crimes  and  attempts 
against  public  interests,  the  second,  with  crimes  a^^ainst  individuals. 
Crimes  against  public  interests  include:  1st,  crimes  against  the 
external  safety  of  the  State  (section  1) ;  2d,  crimes  against  the 
internal  safety  (section  2) ;  3d,  crimes  and  attempts  against 
the  constitution  (section  3)  ;  4th,  offenses  of  individuals  against 
the  respect  and  obedience  due  to  the  law  and  to  the  authority  of 
officers  of  the  law  (section  4)  ;  5th,  crimes  of  public  officers  in  the 
exercise  of  powers  entrusted  to  them  (section  5) ;  6th,  crimes 
against  public  property.  Crimes  against  individuals  are  sub- 
divided into :  1st,  crimes  and  attempts  against  persons  (section 
1)  ;  2d,  crimes  and  misdemeanors  against  property  (section  2). 
This  second  part  of  the  Code  ends  w^ith  a  third  Title  (which  could 
better  have  been  placed  in  the  first  part)  dealing  with  the  rules 
for  accomplices,  joint  offenders,  etc. 

The  law  of  July  17  and  22,  1791,  deals  with  jurisdiction  and 
prosecution,  but  also  defines  and  classifies  municipal  and  correc- 
tional misdemeanors  and  the  punishments  applicable  to  them. 
For  these  offenses  it  is  both  a  code  of  procedure  and  a  penal  code. 
In  the  penal  part,  municipal  misdemeanors  are  enumerated, 
with  the  punishments  applicable.  Correctional  misdemeanors 
are  grouped  under  five  great  divisions.  "  Misdemeanors  punish- 
able by  the  correctional  courts  ",  it  provides  (tit.  II,  Art.  7),  "  shall 
be :  1st,  misdemeanors  against  good  morals ;  2d,  public  disturb- 
ances of  the  exercise  of  any  religious  cult ;  3d,  insults  and  serious 
violence  to  the  person ;  4th,  disturbances  of  the  social  welfare  and 
of  the  public  peace,  by  begging,  riots,  mobs,  or  other  misdemeanors  ; 
oth,  the  attempts  against  the  property  of  individuals,  by  damage, 
larceny  or  ordinary  theft,  swindling,  and  the  opening  of  gambling 
houses  where  the  public  is  admitted." 

To  these  two  laws  there  was  added,  four  years  later,  the  "  Code 
of  misdemeanors  and  punishments  ",  of  the  3d  Brumaire,  year 
IV  (October  25,  1795).     It  was  drafted  by  ^Merlin  -  and,   after 

-  A  commission  of  eleven  members  had  been  appointed  under  a  decree 
of  25th  Fructidor,  year  III,  to  present  a  draft  for  a  police  and  safety 
Code.  Althougfh  ISferlin  did  not  officially  belong  to  this  commission,  he 
«as,  however,  entrusted  by  it  with  the  preparation  of  this  draft.     He 

322 


Chapter   XII]      THE    FRENCH    REVOLUTIONARY    REFORMS  [§  606 

two  sittings  only,  the  Convention  accepted  it,  with  httle  ciuestion. 
This  Code,  which  is  the  first  to  contain  a  system  of  Articles  in  an 
uninterrupted  series  (1  to  646),  was  primarily  a  code  of  criminal 
procedure ;  penal  substantive  law  occupies  only  a  limited  place. 
Book  II,  entitled  "  Administration  of  justice  ",  contains  several 
provisions  for  offenses  of  disrespect  to  constituted  authority 
(Arts.  555  to  559).  In  Book  III,  entitled  "  Punishments  ",  the 
only  topics  are:  1st,  a  more  precise  classification  of  the  various 
kinds  of  punishments  into  ordinary  police,  correctional,  afflictive, 
and  infamous  punishments  (Arts.  599  to  604)  ;  2d,  an  enumera- 
tion of  the  ofi'enses  liable  to  ordinary  police  punishments  (Arts. 
605  to  60S) ;  3d,  definition  of  certain  crimes  against  the  internal 
safety  of  the  State  and  against  the  constitution  (Arts.  612  to 
646).  It  ends  with  a  confirmation  of  the  law  of  July  19,  1791, 
and  of  the  Penal  Code  of  September  25,  1791  (Arts.  609  and  610). 

The  general  system  of  penal  law  resulting  from  this  body  of 
legislation  had  substantial  defects,  notably  in  these  three  respects : 

1st,  The  executive  power  of  pardon  and  of  commutation  of 
sentence  were  abolished  for  all  offenses  tried  by  juries  (P.  C.  of 
1791,  tit.  VI,  Art.  13).^  This  measure  was  due  to  the  spirit  of 
reaction  against  the  abuses  of  Letters  of  pardon,  so  frequent  under 
the  Old  Regime.  None  the  less,  it  was  a  mistake  ;  for  the  power 
of  pardon  must  have  a  place  in  any  rational  system  as  the  necessary 
complement  of  social  justice. 

2d,  This  first  blunder  resulted  in  a  second,  still  more  serious : 
the  abolition  of  penalties  involving  perpetual  loss  of  liberty. 
Labor  in  chains,  which  was  the  next  highest  after  the  death  penalty, 
was  not  to  exceed  a  term  of  twenty-four  years.  Indeed,  in  a  penal 
system  which  does  not  recognize  the  power  of  pardon,  there  is  no 
place  for  life  penalties,  for  we  take  away  all  hope  from  the  convict ; 
and  the  most  powerful  motive  for  repentance  disappears  if  he  is 
not  allowed  to  feel  the  possibility  of  liberation. 

presented  it  to  the  Convention ;  and  it  was  adopted  upon  his  mere  read- 
ing of  it,  interrupted  only  by  the  proposal  of  some  amendments.  In  his 
"Notice  historiquc  sur  la  vie  et  les  travaux  de  Merlin",  M.  Mignct  says, 
of  this  Code  of  Brumaire :  "A  {jciieral  expression  of  the  most  advanced 
social  philosophy,  this  Code,  written  with  elegant  clearness,  whose  every 
provision  carried,  so  to  speak,  its  reason  within  itself,  was  voted  in  two 
sittings  by  the  Convention,  which  adopted  it  in  reliance  upon  his  sponsor- 
ship. Thus  the  ideas  of  Merlin  remained  for  nearly  tifteen  years  the 
legislation  of  France." 

'This  text  runs  thus:  "The  issuance  of  any  document  tending  to 
hinder  or  suspend  the  ex(>rcise  of  criminal  justice  or  of  any  Letter  of  pardon, 
of  discharge,  of  abrogation,  of  amnesty,  or  of  commutation  of  sentence 
is  abolished  for  all  crimes  tried  bj'  juries." 

'  323 


§  (K)^|        THE    FRENCH    REVOLUTIONARY    PERIOD       [Part   I,   TiTLE    IV 

3d,  Finally  (and  this  is  the  chief  defect  of  this  legislation)» 
in  the  case  of  offenses  punishable  with  afflictive  or  infamous 
punishments,  the  punishment  for  each  offense  was  fixed  specifi- 
cally and  unalterably,  without  naming  a  maximum  or  minimum, 
between  which  the  judge  might  have  at  least  some  slight  choice. 
"  The  Constitutional  Assembly,"  says  Treilhard,  in  the  commen- 
tary of  the  Commission  accompanying  the  penal  Code  of  1810, 
"  was  convinced  that  it  could  not  enclose  within  too  narrow  boun- 
daries the  powers  given  to  the  magistracy  :  it  regulated,  therefore, 
with  great  precision  the  duration  of  the  punishment  to  be  applied 
to  each  individual  case ;  its  aim  was  that,  after  the  verdict  of  the 
jury,  the  judge's  function  should  be  limited  to  the  mechanical 
application  of  the  text  of  the  law."  Thus,  through  hatred  of 
the  discretionary  powers  which  the  judges  under  the  old  system 
had  so  abused,  the  Assembly  went  to  the  other  extreme;  they 
abolished  the  power  of  pardon,  and  took  from  the  judge  the  power 
of  adjusting  the  punishment  to  the  personal  and  variable  cul- 
pability of  the  offender.  The  result  was  that  the  penalty  was 
frequently  disproportioned  to  the  deed  which  it  aimed  to  repress ; 
and  that  juries,  making  a  compromise  with  their  consciences,  pre- 
ferred to  acquit  the  offender  rather  than  to  bring  upon  him  a 
punishment  which  they  regarded  as  exaggerated. 

The  Code  of  1791  held  sway  over  France  until  it  was  replaced, 
in  1810,  by  the  Penal  Code  still  in  force  to-day. 


324 


Chapter   XIII 

THE  GERMAN   REFORMS  OF   THE    FRENCH   REVOLUTIONARY 

PERIOD 


§  61.  The  New  Direction  to  Gor- 
man (yriminal  Theory  in 
the  Late  1700  s.  Grol- 
man  and  Feuerbaeh.  The 
Movement  for  Prison  Re- 
form.    Howard. 


§  62.  Feuerbaeh  as  Legislator  for 
Bavaria.  The  Bavarian 
Draft  of  1802;  and  the 
Code  of  1813. 


§  GL  The  New  Direction  to  German  Criminal  Theory  in  the 
Late  1700  s.  —  While  the  principle  of  deterrence  was  adopted  by 
the  French  Code  as  a  practical  measnre,  it  was  in  the  meantime 
coming  to  prevail  in  German  legal  science  on  grounds  of  principle 
and  in  an  improved  form.  The  substantial  and  cogent  reasons  for 
this  were,  indeed,  not  merely  the  inherent  consistency  of  the  theory 
itself  (the  inadequacies  of  which  it  is  comparatively  easy  to  expose), 
as  the  fact  that  this  theory,  in  the  form  given  it  by  its  champions, 
was  best  calculated  to  eliminate  judicial  arbitrariness  and  to 
demonstrate  the  necessity  of  a  controlling  statute  law. 

This  theory  was  led  up  to  by  a  controversy  of  profound  and 
extensive  significance  among  German  jurists  over  the  nature 
of  criminal  responsibility.  Pufendorf  ^  had  been  the  first  writer 
since  Aristotle  to  concern  himself  with  this  subject  in  an  independ- 
ent and  scientific  manner.  Pufendorf's  basic  theory  posited  moral 
responsibility,  but  was  not  adequate,  starting  from  that  stand- 
point, to  work  out  a  doctrine  of  legal  responsibility.  The  theory  of 
moral  freedom  (as  we  have  already  remarked)  offered  one  of  the 
best  supports  for  the  view  that  the  criminal  statute  was  subject 
to  be  overridden  by  the  judge's  individual  opinion  —  a  view  which 
would  undermine  the  statute.  The  natural  attempt,  then,  for 
those  who  repudiated  this  view  was  to  find  for  the  criminal  statute 


^  "De  jure  natura)  et  gentium",  I,  o.  9.     "De  officio  hominis",  I,  e.  1. 


§01]  THE    FRENCH   REVOLUTIONARY   PERIOD      [Part  I,   Title   IV 

a  foundation  that  was  completely  independent  of  the  assumption 
of  human  free(lom.- 

Grolmann  and  Feuerbach.  —  For  this  postulate  of  freedom  of 
the  will,  Grolmann  substituted  the  proposition  that  a  human 
being  who  has  once  acted  in  contravention  to  the  law  will  aj^ain 
do  so  in  the  future  in  the  same  or  a  similar  manner.  Feuerbach,* 
although  himself  a  noble  nature,  approached  the  problem  as  a 
cynic ;  he  regarded  the  human  will  as  a  conglomerate  or  product 
of  purely  sensual  motives,  and  believed  that  in  order  to  reach  such 
motives  the  law  must  be  as  rigid  and  definite  as  possible.  Both 
theories  Avere  false ;  but  both  demanded  what  suited  the  progress 
of  the  times.  At  the  same  time,  they  w^ere  practical  theories, 
in  the  sense  of  seeking  to  make  the  law  as  effective  as  possible. 
Consequently  they  were  admirably  calculated  to  emphasize  the 
possibilities  of  constructive  legislation  and  to  portray  it  as  capable 
of  rational  treatment.  Both  authors  went  about  their  task  with, 
such  a  novel  respect  for  positive  law  that  in  their  hands  it  acquired 
a  repute  in  marked  contrast  to  that  which  it  had  suffered  at  the 
hands  of  its  disparagers.  It  so  happened  (or  perhaps  was  inhe- 
rent in  the  very  nature  of  things)  that  Grolmann  and  Feuerbach. 
(especially  the  latter)  were  men  of  keen  logic  and  gifted  with  the 
highly  important  talent  of  exact  statement  and  brilliant  exposi- 
tion. Feuerbach,  moreover,  was  a  master  of  the  anatomical  dis- 
section of  the  motives  underlying  human  actions  (as  is  revealed 
in  his  "  Revision  of  Criminal  Law  "  and  especially  in  his  later  and 
classical  work  "  Notable  Criminal  Trials  narrated  from  the  Rec- 
ords 


4 


Thus  the  appearance  of  Grolmann's  "  Lehrbuch  "  was  an 
important  tvirning-point  in  the  science  of  German  criminal  law.** 
Its  proud  motto,  borrowing  the  words  of  Ulrich  Zasius :  "  Com- 
munibus  uti  opinionibus,  si  vel  textus  juris  vel  ratio  manifesta 
repugnat,  hoc  nos  certam  veritatis  pestem  decimus  et  contesta- 

2  Cf.  Henke,  pp.  334  et  seq. 

ä  Concerning  the  life  of  this  genial  man  (born  Nov.  14,  1775)  who 
perhaps  is  the  greatest  of  German  writers  on  criminal  law,  cf.  Glaser, 
"Ges.  Ideinere  Schriften  über  Strafrecht,  Civil-  und  Strafprocess",  I 
(1868),  pp.  19-62;  Geyer,  "Festrede  zu  Paul  Joh.  Anselm  v.  Feuerbach's 
hundertjährigem  Geburtstag";  Binding,  in  "Allgemeine  (Augsburger) 
Zeitung"  of  Nov.  14th,  1875  (No.  318). 

^  ["Aetenmässige  Darstellung  merkwürdiger  CriminalrechtsfäUe" ; 
translated  into  English  by  Lady  Duff-Gordon,  under  the  title  "Notable 
German  Criminal  Trials."  —  Ed.] 

* ' '  Grundsätze  der  Criminalrechtswissenschaf t  nebst  einer  systematischen 
Darstellung  des  Geistes  der  deutschen  Criminalgesetze"  (Giessen,  1798). 

326 


Chapter  XIII]       THE    FRENCH    REVOLUTIONARY    REFORMS  [§  61 

mur  ",  forecast  the  destruction  of  the  rubbish  whicli  at  that  time 
served  as  authority  and  the  renascence  of  a  constructive  system 
of  law.  And  the  turning-point  in  legal  science  was  further  marked 
by  Feuerbach's  "  Revision  of  the  Criminal  Law  "  (1799),  by  the 
vigorous  attack  of  Grolmann  and  especially  of  Feuerbach  on 
Klein  ^  and  others ;  and  ultimately  by  the  learned  controversy 
between  these  two  friendly  antagonists  themselves,  Grolmann  and 
Feuerbach.  Once  more  the  distinction  was  insisted  on  between 
general  philosophic  ideas  and  a  practical  system  of  law.  The  value 
of  a  constructive  system  of  legislation  again  came  to  be  realized, 
and  with  it  the  possibilities  of  the  judicial  administration  of  such 
a  law.  Criminal  law  and  criminal  procedure  were  now  culti- 
vated in  journals  devoted  to  that  field.  In  1797,  Grolmann, 
Feuerbach,  and  von  Almendingen  began  the  publication  of  the 
"  Bibliothek  für  peinliche  Rechtswissenschaft  und  Gesetzkunde."  ' 
Klein  and  Kleinschrod  (of  \Yürzburg)  in  1798  founded  the  "  Archiv 
des  Criminalrechts  ",  which  was  for  many  years  the  central  pub- 
lication of  German  criminal  law.  The  false  relation  between 
criminal  justice  and  the  police  authority  (embodied  in  the  oft 
controverted  "  punishment  on  suspicion  ")  ^  was  completely  over- 
thrown by  Feuerbach,  and  the  distinction  between  criminal 
justice  and  police  measures  was  clearly  demonstrated. 

The  Movement  towards  Prison  Reform.  —  During  this  same 
period  the  movement  started  by  the  Englishman  Howard,^  for 
the  improvement  of  prisons  and  criminal  institutions,  showed  its 
effects   in   Germany. ^°     The   conditions    in    many   of   the   great 

^  Klein's  essay,  "Ueber  Natur  und  Zweck  der  Strafe"  in  the  "Archiv 
des  Criminalrechts",  Vol.  2  (1800),  from  the  historical  viewpoint  is  far 
more  accurate  than  Feuerbach's  "Revision."  Cf.  also  Klein  as  to  Grol- 
mann's  "Lehrbuch"  in  the  "Archiv  des  Criminalreehts",  Vol.  1,  Portion 
4,  pp.  128,  etc. 

'  Continued  to  the  3d  volume  (Giessen,  1804). 

*  As  to  the  treatment  at  that  time  of  those  whose  guilt  was  not  abso- 
lutely proven,  cf.  especially  Eisenhart,  in  the  "Archiv  des  Criminalrechts", 
3d  ser.  (1801),  I,  pp.  57  el  seq.;  II,  pp.  1  el  seq.;  also  Klein,  ibid.,  pp.  64 
el  seq.,  and  C.  S.  Zachnrio,  IV,  pp.  1  el  seq. 

^  John  Howard,  "The  State  of  the  Prisons  in  England  and  Wales" 
(1777) ;  translated  in  part  into  German,  with  notes  and  additions,  by 
Köster  (Leipzig,  1780). 

1"  Cf.  especially  Wagnilz,  "Historische  Nachrichten  und  Bemerkungen 
über  die  merkwürdigsten  Zuchthäuser  in  Deutschland  nebst  einem  An- 
hange über  die  zweckmässigste  Einrichtung  der  Gefängnisse  und  Irren- 
anstalten" (2  vols.,  Halle,  1791,  17Ü2).  At  that  time  the  "Zuchthaus" 
denoted  an  intermediate  form  of  imprisonment.  The  worst  criminals 
were  for  the  most  part  sent  to  the  so-called  "Stockhäuser"  or  to  fortresses. 
Thus  e.g.  in  Braunsehwieg,  no  one  who  had  committed  a  crime  depriving 
of  civic  rights  was  sent  to  the  "Zuchthaus."     Cf.  Wagnilz,  II,  p.  25. 

327 


§  02]  THE    FRENCH    REVOLUTIONARY   PERIOD      [Part   I,   Title   IV 

(Timiiuil  institutions  in  Germany  were  indeed  not  so  revoltinf:^  as 
in  most  of  the  English  prisons.  In  many  principaHties,  as  a  result 
of  reformatories  and  careful  supervision  by  the  local  authorities, 
prison  administration  observed  (at  least  towards  those  prisoners 
not  serving  the  severest  sentences)  '^  methods  of  treatment  which 
were  based  on  humanity  and  even  on  principles  of  education.  Yet 
there  was  no  well  thought  out  and  systematic  scheme  of  prison- 
penalties,  and  even  the  institutions  ^-  then  regarded  as  the  best 
were  used  also  as  asylums  for  the  insane,  the  poor,  and  even  the 
or])lians.  Ideas  of  progress,  which  even  yet  have  not  reached  their 
full  fruition,  were  at  that  time  struggling  against  opinions  and 
conditions  ^^  which  to  us  to-day  are  inconceivable.^^ 

§  02.  Feuerbach  as  Legislator  for  Bavaria.  —  It  was  natural  that 
a  State  like  Bavaria,  which  as  a  result  of  external  circumstances 
had  (for  the  time)  attained  such  a  prominent  position  and  which 
at  the  same  time  inclined  so  much  to  follow  France,  should  enter 
upon  a  thoroughgoing  reform  in  the  province  of  criminal  law  as 
well  as  in  the  other  branches  of  governmental  activity.  This 
was  furthered  by  the  fact  that  in  INIaximilian  Joseph  it  possessed 
an  enlightened  and  liberal-minded  ruler.  The  task  of  preparing 
a  draft  for  a  penal  code  was  assigned  to  Kleinschrod,  professor  at 
Würzburg.  His  draft,  published  in  1802,  was  in  many  portions 
exceedingly  ambiguous  in  both  its  composition  and  its  underlying 
purposes.  Its  general  spirit  was  that  of  the  criminal  portion  of 
the  "  General  Prussian  Landrecht."  It  met  with  an  able  criti- 
cism at  the  hands  of  Feuerbach,  who  was  himself  a  master  of 
style ;  and  the  principles  he  invoked  were  absolutely  correct. 
Imperfection  in  a  code,  he  observed,  may  well  consist  in  the  very 
fact  of  its  excessive  detail.^  "  Xot  only  must  a  code  deal  with  all 
subjects  within  its  sphere,  but  it  must  also  govern  these  subjects 
by  precise  exhaustive  definitions  and  by  broad  rules  of  universal 

'^  CJ.  the  observation  of  Wagnitz  (II,  pp.  67  et  seq.)  concerning  the 
"Zuchthaus"  in  Celle. 

1-  In  many  institutions  of  this  character  {e.g.  in  Leipzig,  Frankfurt 
a.  M.,  Augsburg,  cf.  Wagnitz,  I,  pp.  267  et  seq.:  II,  pp.  90,  91 ;  II,  p.  11) 
the  state  of  things  was  bad  enough.  Brutal  treatment  —  e.g.  frequent 
use  of  wire-braided  whips  —  deadened  aU  sense  of  honor.  An  illustration 
of  this  brutal  treatment  was  the  custom  of  flogging  upon  admission  to  the 
prison,  the  so-called  "welcome." 

"  Even  such  a  man  as  Justus  Moser  ("Patriotische  Phantasien",  IV, 
p.  157)  could  approve  the  sale  of  criminals  for  foreign  military  ser\iee 
{cf.  Wagnitz,  I,  pp.  214,  215). 

'*  In  Stettin,  e.g.  those  who  were  confined  in  the  fortresses  were  obUged 
to  procure  their  clothing  by  begging.     Hälschner,  p.  243. 

^  "Bibl.  für  peinliche  Rechtswissenschaft",  Vol.  2,  Part  3,  p.  10. 

328 


Chapter  XIII]      THE    FRENCH   REVOLUTIONARY   REFORMS  [§  62 

application.  Xo  code  can  comprise  all  cases  and  examples.  .  .  . 
If  legislation  thinks  that  detail  in  dealing  with  the  several  possible 
cases  and  multiplicity  of  special  provisions  can  make  amends  for 
the  lack  of  general  definitions  and  principles,  it  will  be  defective 
and  imperfect  by  the  very  reason  of  its  prolixity."  "  The  (wise) 
legislator  -  does  not  speak  in  syllogisms,  and  does  not  use  philo- 
sophic and  technical  words  of  expression.  He  displays  his  philo- 
sophic spirit  in  the  depth  and  breadth  of  his  conceptions  and  not 
in  the  figments  of  philosophy.  He  speaks  the  language  of  the 
people  with  the  clear  and  lofty  spirit  of  wisdom.  His  simplicity 
is  in  harmony  with  the  correctness  and  precision  of  his  ideas. 
Capable  of  being  understood  by  all,  his  principles  furnish  the 
thoughtful  with  a  rich  fund  of  ideas."  Feuerbach  also  justly 
insisted  upon  system  in  a  code.^  "  To  be  sure,  a  code  is  not  a 
compendium ;  it  can  never  aspire  to  the  scholastically  artificial 
and  precisely  articulated  form  of  a  system.  But  its  principles 
should  coordinate  in  a  plain,  simple  arrangement  determined 
by  their  association  and  relationship.  ^Moreover,  there  are  cer- 
tain negative  principles  of  a  system  which  the  legislator  should 
follow.  Nothing  should  be  in  the  wrong  place.  Laws  dealing 
Avith  extraneous  subjects  should  not  be  introduced  into  other 
laws  to  the  confusion  and  destruction  of  their  coherence;  and 
laws  should  not  be  exposed  to  mistakes  and  confusion  because  of 
their  position  or  the  heading  under  which  they  are  included  or  the 
connection  in  which  .  .  .  they  are  used.  While  the  work  of  the 
legislator  is  not  scientific  jurisprudence,  yet  it  is  for  science  and 
from  it  science  should  ensue."  All  this,  to  be  sure,  is  but  little 
in  harmony  with  that  set  conception  which  many,  in  their  desire 
to  banish  all  arbitrariness  and  discretion  from  the  courts,  form 
of  the  relation  of  legislation  and  jurisprudence.  Quistorp,  for 
example,  in  his  "  Draft  of  a  Code  for  Penal  and  Criminal  Cases  "  ^ 
had  proposed  to  forbid  comments  on  the  criminal  law  by  jurists 
in  printed  publications.^ 

The  result  of  this  criticism  ^  of  the  Bavarian  draft  was  that 

2  Preeeding  reference,  p.  20.  '  Pp.  29,  30. 

*  Part  I,  Chap.  1,  §  5. 

5  To  the  contrary,  cf.  Feuerbach,  "Biblioth.",  Vol.  II,  Part  3,  Div.  2, 
pp.  20  et  seq. 

"  Feuerbach  at  the  time  aspired  to  the  introduction  of  a  new  system 
of  criminal  procedure,  liut  he  did  not  accomplish  it.  The  portion  of  the 
Bavarian  Code  of  that  time  had  become  merely  an  adaptation  (with 
meritorious  features  however)  of  tJie  inquisitorial  form  of  procedure. 
[On  this  subject,  cf.  Vol.  VI  of  the  present  Series,  Esmeins  "History  of 
Continental  Criminal  Procedure",  transl.  Simpson.  —  Thaxsl.] 

329 


§  (121  '■'■H'^    FRENCH    REVOLUTIONARY    PERIOD       [Part    I,    TlTLK    IV 

lu'urrhacli  liiinsclf  n^ccivcfl  a  commission  to  [)r('par('  a  new  draft 
of  a  code  for  lJa\aria.  In  1805  he  was  appointed  Minister  of 
Justice  of  Bavaria  (of  wiiicii  he  was  a  subject),  a  State  which  at 
that  time  occupied  a  j)()siti<)n  of  considerable  power  and  was  quite 
(hsposed  towards  thorought^oinj;  reforms  in  all  branches  of  law. 

The  Bavarian  Code  of  1813. — The  Bavarian  Criminal  ("ode  of 
May  1Ü,  1813,  though  by  no  means  entirely  in  accord  with  I^'euer- 
bach's  views, ^  was  based  substantially  upon  his  draft,  and  was 
emphatically  an  epoch-making  work  in  German  criminal  legis- 
lation. It  is  remarkable  for  its  clearness  of  expression,  worthy 
in  every  respect  of  a  legislator,  for  a  completeness  in  its  General 
Portion  ^  and  a  precision  in  its  definitions  thitherto  unknown  in 
(icrman  law.  Naturally,  in  a  work  by  Feuerbach,  nothing  is 
to  be  found  of  the  doctrine  of  unlimited  judicial  discretion ;  but 
(as  with  the  French  Code  Penal  and  most  of  the  subsequent  leg- 
islation) the  Code  gives  the  judge  the  right  of  fixing  the  pun- 
ishment within  a  certain  maximum  and  minimum.  A  decided 
improvement  lay  in  the  fact  that  the  rules  for  aggravation  and 
mitigation  of  punishment  were  sharply  distinguished  from  the 
judicial  right  to  fix  the  penalty  within  the  customary  field  for  dis- 
cretion.^ Like  the  French  Code,  the  Bavarian  Code  assumed  itself 
to  be  complete ;  and,  according  to  Article  I,  the  resort  to  analogy, 
for  the  purpose  of  thereby  imputing  criminality  to  an  act,  is  for- 
bidden. "  For  it  is  upon  this  principle  ",  says  the  official  Annota- 
tion to  the  Code,^°  "  that  the  security  of  the  State  and  of  every 
individual  depends."  It  follows  the  French  Code  in  adopting 
the  triple  classification  of  "  Crimes  ",  "  Misdemeanors  ",  and 
"  Transgressions."  ^^  The  last  mentioned  are  entrusted  to  a 
special  Code  for  OfTenses  against  Police  Supervision,  and  "  crimes  " 
are  allotted  to  the  "  criminal  "  courts,  while  "  misdemeanors  " 
are  allotted  to  the  jurisdiction  of  the  "  civic  penal  "  courts,  and 
"  transgressions  "  are  left  to  the  jurisdiction  of  the  police  officials.^- 
The  provisions  of  the  General  Portion,^^  however,  apply  both  to 

^  Feuerbaeh  did  not  accomplish  his  purpose  of  abolishing  flogging. 
Cf.  Geyer,  p.  15.     However,  torture  yielded  in  1806  to  Feuerbach's  attacks. 

*  "Upon  the  soundness  and  completeness  of  these  the  fate  of  all  special 
criminal  provisions  depends"  ("Official  Annotations",  I,  p.  49). 

^  "Official  Annotations",  pp.  232  el  seq. 

1"  I,  p.  66. 

''  I.e.  "Verbrechen",  "Vergehen"  and  "Uebertretungen." 

12  Art.  3. 

"  Under  "crimes"  are  comprehended  all  punishable  actions  which  on 
account  of  their  nature  and  the  extent  of  their  e\il  are  threatened  with 
the  death  penalty,  wearing  of  chains,  imprisonment  in  a  penitentiary, 

330 


Chapter  XIII]      the    FRENCH   REVOLUTIONARY   REFORMS  [§  G2 

"  misdemeanors  "  and  to  "  crimes."  "  A  well-calculated  s^'stem 
of  punishment  should  adjust  itself  to  the  character  of  the  indi- 
vidual criminal  act,  and  as  stated  in  the  "  Annotations  "  it  is  the 
quality  and  not  the  quantity  of  the  punishment  which  should  be 
determined  by  the  character  of  the  act. 

Defects.  —  In  contrast  to  these  meritorious  features  of  the 
Bavarian  Code,  there  were  some  considerable  defects,  which 
for  a  long  time  continued  to  exercise  no  slight  detrimental  influ- 
ence on  the  legislation  of  the  other  German  States.  Feuerbach 
certainly  was  conscious  of  the  distinction  between  the  task  of  the 
legislator  and  that  of  the  scientific  jurist.  But,  as  a  dialectician, 
he  relied  too  much  upon  his  own  discernment  and  believed  that 
the  fundamental  problems  of  science  could  receive  final  solution 
in  definite  formulas.  For  this  reason  the  General  Portion  of  his 
work  contains  a  long  list  of  perversely  unsuitable  provisions  and 
definitions.  Article  65  and  those  following,  dealing  with  negli- 
gence, are  out  of  place  in  a  code;  and  the  provisions  relative  to 
unlawful  intent  are  in  large  part  completely  erroneous,  and  reach 
their  climax  in  his  famous  or  rather  notorious  "  presumption  of 
malicious  intent."  ^^  This  Code  of  his  also  originated  those 
unfortunate  and  subtle  provisions  as  to  conspiracy  ("  Com- 
plott  "),^^  which  infected  like  disease-germs  most  of  the  later 
German  Codes,  and  were  but  slowly  eliminated.  Moreover,  as 
the  theory  of  deterrence,  which  he  sought  to  follow,  required  that 
the  greatest  possible  restrictions  be  placed  upon  the  exercise  of 
judicial  discretion,^^  the  Code's  details  as  to  penalties  lost  them- 
selves in  trivial  distinctions  which  in  many  cases  were  inev- 
itably either  incorrect  or  open  to  doubt.  Another  defect,  due 
to  the  deterrence  theory, ^^  was  the  harsh  penalties  for  second 

workhouse,  or  fortress,  with  forfeiture  or  declaration  of  incapacity  for 
all  honors  or  offices  under  the  State  or  such  as  are  deemed  honorable. 

"  "Official  Annotations",  T,  p.  30. 

>^  Cf.  Arts.  41,  43.  "Annotations",  I,  p.  143.  As  to  negligence,  cf. 
Arts.  65  el  seq.  Art.  69,  while  it  declares  generally  that  negligence  is 
punishable,  includes  therein  quite  a  number  of  new  offenses. 

'^  Arts.  56  et  seq.  Art  46,  Abs.  2,  even  recognizes  unintentional  in- 
stigation of  crime. 

'^  G(nierally  speaking,  the  range  between  the  maxim.um  and  minimum 
of  punishment  was  too  narrow.  Cf.  Arnold,  in  "Archiv  d.  Criminalr." 
(1844),  p.  196. 

'*  The  artificial  character  of  the  theory  of  deterrence,  at  variance 
with  real  life,  led  e.g.  to  giving  quite  unreasonable  consequences  to  the 
offenses  of  theft  and  defiance  of  the  authorities.  Tlie  taking  of  a  turnip 
from  a  field  or  of  a  plum  from  a  tree  according  (o  Arts.  21S,  220  entailed  a 
penalty  of  three  years'  imi)risonment  in  a  workliouse  (cf.  Arnold,  p.  395), 
and  the  Annotations  of  the  Code  would  not  forl)id  punishment  for  defiance 

331 


§  62]  THE    FRENCH   REVOLUTIONARY   PERIOD      [Part  I,   Titf.r    IV 

offenses;''-'  and  since  the  deterrent  theory  assumes  that  a  penalty 
which  has  Ix'cn  announced  by  way  of  threat  is  always  justifiable, 
the  ( 'ode  authorized  infliction  of  severe  punishments  for  acts  which 
only  presumably,  or  even  possibly  constituted  a  crime.^"  More- 
over, since  P'euerbach  aimed  to  separate  absolutely  law  and  moral- 
ity, the  Code  would  in  no  case  regard  as  crimes  grave  breaches  of 
morality  which  did  not  violate  subjective  rights.^'  Adultery,  for 
example,  is  treated,  very  superficially,  merely  as  the  intentional 
failure  to  perform  a  contract  ^^  and  is  dealt  with  in  the  same  divi- 
sion as  violation  of  powers  of  attorney.  It  is  also  peculiar  that 
Article  106  permits  of  certain  species  of  "  punishment  on  suspi- 
cion "  ("  Verdachtstrafe  "),  although  this  is  not  recognized  by 
the  Annotations. 

Corporal  chastisement  appears  in  the  Code  only  as  aggravating 
the  punishment  of  imprisonment ;  ^^  the  legislator  however  for- 
bade its  infliction  at  the  end  of  the  period  of  punishment.  Con- 
fiscation of  property  was  abolished  by  the  Bavarian  constitution 
of  1808,  and  this  was  confirmed  by  Art.  33  of  the  Code.  But  in 
accordance  with  Art.  7,  the  artificial  and  unnatural  institution  of 
civic  death  continued  in  Bavaria  until  the  statute  of  Nov.  19,  1849. 
The  only  aggravation  of  the  death  penalty  recognized  by  the  Code 
was  preliminary  exposure  on  a  pillory. 

Soon  after  the  publication  of  the  Code  were  promulgated  the 
official  "  Annotations  to  the  Code  of  the  Kingdom  of  Bavaria 
according  to  the  Decrees  of  the  Royal  Privy  Council."  "^  But 
it  is  worthy  of  note  that  the  royal  patent  for  its  publication  -^ 
forbade  the  publication  of  further  commentaries  on  the  Code 
(although  it  could  itself  very  properly  be  designated  as  a  work  of 
scientific  jurisprudence) ;  and  even  the  lecturers  in  the  Universi- 
ties cited  exclusively  to  the  text  of  the  law  and  these  official 
"  Annotations  ",  although  the  latter  were  often  at  variance  with 
the  clear  text  of  the  law  ! 

of  the  authorities  in  eases  where  the  authorities  lack  jurisdiction  or  their 
order  is  improper  (Annotations,  III,  p.  52).  Even  more  than  the  Code, 
the  Bavarian  statute  of  Aug.  9,  1806  concerning  the  punishment  of  poach- 
ing adheres  to  the  theory  of  deterrence.  Arnold  {anlc,  p.  402)  gives  a 
good  description  of  the  effect  of  this  "deterrence"  in  actual  practice. 

1^  Arts.  113  et  seq.  ^^  Annotations,  II,  p.  59. 

20  Cf.  Arts.  149,  160.  ^^  Art.  401.     Cf.  Ann.  I,  p.  59. 

^^  As  to  the  somewhat  disproportionate  punishment  of  adultery,  cf. 
Arnold,  pp.  379  et  seq. 

^*  "Anmerkungen  zum  Strafgesetzbuche  für  das  Königreich  Bayern 
nach  den  Protokollen  des  königl.  geheimen  Raths"  (3  vols.  JNIünchen, 
1813).  "  Nov.  13,  1813. 

332 


TITLE   V.     MODERN   TIMES 


CHAPTER  XIV.       THE     FRENCH     CODE     OF     1810,    AND 


CHAPTER     XV. 
CHAPTER  XVI. 


FRANCE   IN   THE   1800  s. 
GERMANY   SINCE   1813. 
OTHER   COUNTRIES: 

A.  AUSTRIA. 

B.  NETHERLANDS   AND   BELGIUM. 

C.  SCANDINAVIA. 

D.  SWITZERLAND. 


333 


Chapter  XIV 
THE   FRENCH   CODE  OF   1810,    AND   FRANCE   IN  THE    ISOO  s 

§  62a.     The  Penal  Code  of  1810.        I  §  62b.     Principal     Changes     during 

I  the  1800  s. 

§  G2a.    The  Penal  Code  of  1810.  —  French  criminal  law  includes 

(1)  the  general  law,  i.e.  the  Penal  Code,  the  Code  of  Criminal 
Procedure,  and  their  appurtenant  and   amendinj,^  statutes,  and 

(2)  the  special  law,  i.e.  special  laws  covering  special  oil'enses  and 
special  procedures. 

The  general  criminal  law  has  been  several  times  codified,  re- 
formed, and  revised  since  the  Revolution  of  1789.  In  fact,  we 
may  distinguish,  in  what  concerns  criminal  and  civil  law  alike, 
three  different  legislative  processes :  codification,  which  builds 
on  a  new  plan  the  whole  of  a  legislation ;  reform,  which  modi- 
fies the  Codes  and  gives  them  new  life;  and  revision,  which 
perfects  them  without  altering  the  fundamental  regulations.  The 
proN'isions  of  the  general  criminal  law  are  to-day  embraced  in  two 
Codes  :  the  Penal  Code  and  the  Code  of  Criminal  Procedure,  which 
replace  the  laws  of  the  intermediary  epoch.  The  history  of  the 
original  enactment  and  later  changes  of  these  two  Codes  is  as 
follows : 

A  commission,  appointed  under  the  Consulate  (by  a  decree  of 
27th  Germinal,  year  IX),  and  composed  of  MM.  Mciliard,  Target, 
Oudard,  Treilhard,  and  Blondel,  had  been  charged  with  the  draft- 
ing of  a  single  Code,  to  cover  both  general  principles  and  details. 
This  draft,  submitted  by  this  commission  and  composed  of  11()9 
Articles,  was  prefaced  by  some  general  comments;  those  prepared 
by  Target  dealt  with  punishments  ;  those  of  Oudard,  with  organic- 
provisions    and    with    j)r()cedure.     "^^riiis    work    was    innnediately 

i[§§62ft,  62?),  =  §§  76-82,  pp.  1.32-142,  of  Vol.  T  of  Professor  R.  Gak- 
uaud's  " Trait«  theorique  et  pratique  du  droit  penal  fran^-ais"  (2d  ed., 
1898).     For  this  author  and  work,  see  the  Editorial  Preface.  —  Ed.] 

335 


§  62a]  MODERN   TIMES  [Part   I,   Title   V 

prinU'd,^  and  scut  to  the  Court  of  Cassation,  the  criminal  courts, 
and  the  courts  of  appeal,  to  obtain  their  opinions.  These  opini(nis 
(not  very  fav'orable,  on  the  whole,  to  the  legislation  of  the  Constitu- 
tional Assembly  and  the  Convention)  showed  a  tendency  toward  a 
return  to  the  old  criminal  law.'  On  2d  Prairial,  year  XII,  the 
Emperor  ordered  the  drafting  of  a  series  of  fundamental  questions, 
to  serve  as  basis  for  debate  in  the  Council  of  State.^  These  ques- 
tions, fourteen  in  number,  were  submitted  to  this  numerous  body 
at  the  meeting  of  16th  Prairial,  year  XII.  The  debate  which  en- 
sued on  these  topics  was  before  long  postponed,  in  order  first,  to 
reach  a  settlement  upon  the  question  of  reorganization  of  the  ju- 
diciary. The  delay  due  to  this  and  other  reasons  ^  suspended  action 
for  three  years  on  the  code-drafts.  When  the  debate  was  resumed, 
in  January,  1808,  the  Council  separated  the  "  laws  of  form  "  from 
the  substantive  law.  The  former  were  presented  to  the  Legisla- 
tive Body  ^  as  a  draft  Code  of  Criminal  Procedure,  the  latter  as  a 
draft  Penal  Code.  The  former  Code  was  enacted  at  the  end  of 
1808,  the  latter  at  the  beginning  of  1810.  Before  promulgating 
the  two  Codes,  the  government  waited  until  the  magistracy,  reor- 
ganized by  the  law  of  April  20,  1810,  should  be  regularly  in  office. 
Both  Codes,  therefore,  took  effect  from  the  1st  of  January,  1811. 


2  In  an  octavo  volume,  entitled:  "Pro jet  de  Code  criminel  avec  les 
observations  des  redacteurs,  celles  du  Tribunal  de  cassation  et  le  eompte 
rendu  par  le  grand  juge",  Paris,  year  XIII,  pub.  Garnery. 

'  "Observations  des  tribunaux  d'appel  sur  le  projet  de  Code  criminel", 
4  vol.  in  4to,  year  XIII. 

*  Among  these  questions,  the  following  were  those  which  concerned 
more  particularly  penal  law :  Question  IX :  Shall  capital  punishment  be 
continued?  —  Question  X:  Shall  there  be  pimishments  for  life?  —  Ques- 
tion XI :  Shall  confiscation  be  permitted  in  certain  cases  ?  —  Question  XII : 
Shall  judges  have  a  certain  freedom  in  the  application  of  punishments  ? 
Shall  there  be  a  maximum  and  a  minimum  which  will  give  them  the  power  of 
imposing  punishment  for  a  longer  or  shorter  period  according  to  circum- 
stances ?  —  Question  XIII :  Shall  surveillance  be  introduced  for  a  particular 
class  of  criminals,  after  the  expiration  of  their  punishment,  and  shall  bail  be 
demanded  in  certain  cases  for  future  good  conduct  ?  —  Question  XIV :  Shall 
rehabilitation  be  accorded  to  convicts  whose  conduct  will  have  made  them  worthy 
of  it? 

^  M.  Cruppi,  attorney-general  to  the  Court  of  Cassation,  in  an  opening 
address  delivered  in  1896,  under  the  title,  "Napoleon  et  le  jury",  has 
shown  that  the  principal  cause  of  the  delays  in  criminal  legislation  was 
the  question  of  the  jury.  "Napoleon  could  not  endure  a  tribunal  which, 
in  spite  of  skilful  precautions  in  its  administrative  recruiting,  would  be 
in  constant  likelihood  of  escaping  his  power:  he  made  repeated  attempts 
to  destroy  it,  but  met  ^nth  sturdy  resistance.  The  jury  found  energetic 
defenders  among  the  best  jurists  of  the  country." 

MFor  an  explanation  of  the  composition  of  these  various  legislative 
bodies  under  the  Empire,  see  M.  Planiol's  chapter  in  "General  Survev  of 
Continental  Legal  History,"  Vol.  I  of  this  Series,  p.  281.  —  Ed.] 

336 


Chapter  XIV]  FRANCE  IN  THE   1800  S  [§  62a 

The  Penal  Code  of  1810  was  at  once  reactionary  and  reconstruc- 
tive. It  took  as  its  basis  the  principles  of  the  utilitarian  school. 
In  essence,  it  aimed  to  secure  the  defense  of  society,  by  means  of 
intimidation.^  The  philosophy  of  penal  justice  does  not  seem  to 
have  concerned  the  mind  of  the  legislators  any  further  than  a 
certain  attention  to  the  judge's  apportionment  of  the  punishment 
to  the  offense.  The  Penal  Code  was  divided  under  three  heads  — 
crimes,  punishments,  and  jurisdiction.  In  its  definitions  of  crime 
it  is  notable  mainly  for  its  excessive  severity ;  it  also  went  too  far 
in  many  points,  as  in  making  criminal  a  failure  to  reveal  a  plot 
and  in  classing  the  attempt  with  the  consummated  crime,  and  of 
the  accomplice  with  the  principal.^  In  its  system  of  penalties,  the 
Penal  Code  concerned  itself  exclusively  with  punishment ;  the 
idea  of  reforming  the  offender  through  the  law  was  foreign  to  it. 
We  find  the  death  penalty  and  life  punishments  freely  applied, 
excessive  chastisements,  barbarous  mutilations,  and  penalties 
unjust  in  their  effects,  such  as  general  confiscation  and  civil  death. 
It  inflicted  upon  the  parricide  the  mutilation  of  his  hand  before 
putting  him  to  death ;  it  employed  the  brand  (for  certain  convicts) 
and  the  "  carcan."  Its  system  of  imprisonments  was  onl}^  a  fiction, 
for  there  were  no  penitentiary  establishments  appropriate  for  the 
various  punishments.  Such  were  the  chief  defects  of  this  legisla- 
tion. But  from  other  points  of  view  the  Penal  Code  of  1810  did 
institute  or  preserve  some  important  advances.  First,  as  a  work 
of  codification,  it  is  drawn  with  much  simplicity,  clearness,  and  or- 

'  Upon  the  j^hilosophie  principles  which  inspired  the  framers  of  the 
Penal  Code,  we  find  the  following  in  the  "Observations"  of  Target,  placed 
at  the  beginning  of  the  draft:  "Plainly  pnnishment  is  not  vengeance; 
this  wretched  satisfaction,  the  mark  of  a  low  and  cruel  mind,  has  no 
place  in  the  theory  of  the  law.  The  necessity  of  punishment  is  alone  what 
makes  it  lawful.  It  is  not  the  prime  aim  of  the  law  that  the  offender 
should  suffer ;  the  thing  of  chief  importance  is  that  crimes  be  prevented. 
If,  when  a  most  detestable  crime  had  been  committed,  we  could  be  sure 
that  no  further  crime  were  to  be  feared,  the  punisliment  of  this  final 
offender  would  be  useless  barbarity ;  some  would  not  hesitate  to  assert 
that  it  would  exceed  the  power  of  the  law.  The  gravity  of  crimes  is 
measured,  therefore,  not  so  much  by  the  perversity  which  they  reveal  as 
by  the  dangers  which  they  entail.  The  efficacy  of  punishment  is  meas- 
ured less  by  its  harshness  than  by  the  fear  which  it  inspires."  Locr6, 
Vol.  XXIX",  p.  8.  These  remarks  express  with  the  greatest  clearness  the 
doctrines  of  Bentham  ;  and  his  doctrines  undoulttedly  formed  the  basis 
of  the  j)ro\isions  of  the  Penal  Code  of  ISIO.  Hcnlham'f^  treatises  on  civil 
and  ])enal  legislalion  had  been  translated  and  ])ublishe(l  in  1S()2  by  Dii- 
monl.  The  influence  of  Kant  had  not  yet  made  itself  felt  in  France,  at 
least  in  official  sj)h(Tes. 

8  Its  system  of  criminality,  defective  though  it  may  be,  does  not,  how- 
ever, deserve  the  criticisms  which  have  properly  been  made  upon  its 
system  of  punishments.     CJ.  Chauvcau  and  Ilclie,  Vol.  I,  no.  11. 

337 


§  G2fe]  MODERN   TIMES  [Paut   I,   Title   V 

(ler ;  crimes  and  offenses  of  tlie  same  nature,  altliouf^h  of  diflVrcnt 
<!;ravity,  are  no  longer  separated ;  these  were  grou[)ed  in  Book  III, 
while  Book  IV  was  devoted  to  poHce  misdemeanors.  Secondly, 
the  pardoning  power,  which  had  already  been  restored  to  the  Ex- 
ecutive by  a  "  senatus-consultum  "  of  16th  Thermidor,  year  X, 
and  the  life  punishments,  are  reestablished.  Thirdly,  punishments 
for  a  term  were  no  longer  absolutely  fixed,  and  the  important 
innovation  of  a  maximum  and  a  minimum  was  introduced  ;  there 
was  also  an  embryonic  recognition  of  the  princij)le  of  extenuating 
circumstances,  the  benefit  of  which  was  limited  to  misdemeanors 
causing  damage  not  exceeding  twenty-five  francs. 

But  this  Code  of  1810  is  no  longer  in  force  in  all  its  original  de- 
tails ;  many  laws  promulgated  since  1810  have  enlarged  or  modified 
its  provisions.  Throughout  these  later  laws  it  is  easy  to  recognize 
the  traces  of  the  different  regimes  which  have  succeeded  one 
another  in  our  country.  In  fact,  every  political  revolution  neces- 
sarily influences  criminal  law,  which  is  only  a  branch  of  the  public 
law  of  a  people. 

§  626.  Principal  Changes  during  the  1800  s.  —  The  various 
measures  (suffixed  to  each  of  the  Articles  which  they  complete 
or  modify)  are  of  two  kinds,  in  respect  to  legislative  method. 
(1)  Some  have  been  incorporated  into  the  text  itself  of  the  Code, 
without  alteration  of  its  system.  Thus,  a  general  revision  of  the 
Penal  Code  was  made  by  the  law  of  x4pril  28,  1832  ;  ^  and,  at  that 
time,  a  new  edition  was  officially  issued.  Since  then,  several  very 
important  laws,  notably  that  of  May  13,  1863,^  that  of  January 
23,  1874,  and  that  of  November  15,  1892,  have  again  recast  a  cer- 
tain number  of  its  provisions.  (2)  Other  statutes  so  related  to  the 
Penal  Code  as  to  complete  or  modify  it,  have  remained  outside  of 
the  fabric  of  codification :  such  are,  for  example,  the  law  of  June 
8,  1850,  on  transportation ;  that  of  August  5,  1850,  on  the  educa- 
tion and  protection  of  juvenile  offenders ;  that  of  May  30,  1854, 
on  the  method  of  punishment  by  hard  labor;  that  of  ]May  27, 
1885,  on  the  banishment  of  recidivists ;  and,  in  part,  both  that  of 
August  14,  1885,  on  the  means  of  preventing  relapse,  and  that  of 
March  26, 1891,  on  the  extenuation  and  aggravation  of  punishments. 

1  This  rovdsion  affected  162  Articles  of  the  Penal  Code,  as  also  parts 
of  the  Code  of  Criminal  Procedure.  See  A.  Chauveau,  "Code  penal  pro- 
gjessif  ;  Commcntaire  sur  la  loi  modifieative  du  Code  penal"  (Paris,  1832). 

^  This  revision,  less  extended  than  that  of  1832,  affects  45  Articles  of 
the  Penal  Code.  On  this  statute,  see  G.  Dutruc,  "Le  Code  penal  modifie 
par  la  loi  du  13  mai,  1863"  (Paris,  1863). 

338 


Chapter  XIV]  FRANCE  IN  THE   1800  S  [§  62b 

The  chief  reforms,  which  our  penal  law  has  undergone  since  1810 
may  be  grouped  under  the  following  general  principles  :  mitigation 
of  penalty;  the  development  of  the  principle  of  extenuating  circum- 
stances; the  extension  of  the  application  of  the  Penal  Code ;  the 
reform  of  the  offender  through  punishment ;  the  principle  of  social 
defense,  as  involving  the  distinction  between  first  offenders  and 
recidivists. 

(a)  The  mitigation  of  the  penal  system  inspired  three  kinds  of 
reforms.  (1)  A  certain  number  of  punishments  have  been  sup- 
pressed or  lightened.  Among  other  legal  provisions  having  this 
aim  and  effect  may  be  cited  :  Art.  60  of  the  Constitution  of  1  SI 4, 
abolishing  general  confiscation ;  the  act  of  April  28,  1832,  suppress- 
ing branding  and  amputation  of  the  hand,  for  a  parricide,  before 
his  execution ;  the  Constitution  of  November  4,  1848,  abolishing 
the  death  penalty  for  political  offenses,  and  the  act  of  June  8,  1850, 
substituting  for  it  transportation  to  a  fortress  ;  the  act  of  April  12, 
1848,  suppressing  public  exhibition;  the  act  of  May  31,  1854, 
abolishing  civic  death;  the  numerous  acts  modifying  the  regula- 
tions for  surveillance  by  the  State  police,  and  the  act  of  ]\Iay  23, 
1885,  replacing  that  method  by  domiciliary  restriction.  (2)  Some 
classes  of  crimes,  for  which  punishment  is  unjust  or  useless  have 
been  abolished,  especially  the  offense  of  non-disclosure  of  plots 
made  or  crimes  planned  against  the  safety  of  the  State,  and  of  non- 
disclosure of  crimes  of  counterfeiting,  abolished  in  1834.  (3)  A 
certain  numl)er  of  acts  have  been  taken  from  the  category  of  crimes 
and  classed  as  misdemeanors.  This  legal  reclassification  began  with 
the  act  of  June  25,  1824,  which  brought  down  into  the  class  of  mis- 
demeanors thefts  committed  either  in  an  inn  or  in  a  hostelry,  by 
others  than  the  inn-keeper,  the  landlord,  or  a  manager,  or  com- 
mitted in  the  fields  or  at  sales,  —  thefts  which  Arts.  386  and  388 
punished  by  imprisonment ;  the  transfer  was  completed  by  the 
act  of  April  28,  1832,  and  that  of  May  13,  1803.  But  in  this  chang- 
ing of  crimes  into  misdemeanors,  the  act  of  1863  showed  more 
liberality  than  that  of  1832. 

{}))  The  extension  of  the  doctrine  of  extenuating  circumstances, 
begun  cautiously  by  the  act  of  June  25, 1824,  and  completed  by  the 
act  of  April  28,  1832,  changed  the  entire  system  of  the  Penal  Code. 
This  radical  reform  gave  to  the  trial  tribunal  the  power  to  deter- 
mine, with  some  discretion,  the  legal  morality  of  the  offense  under 
investigation,  and  thus  to  cast  a  more  exact  balance  between  the 
punishment  and  the  gravity  of  the  particular  offense.     This  power 

339 


§  G2fc]  MODERN  TIMES  (Pakt  I,  Title  V 

of  the  judge  is  almost  unlimited  for  misdemeanors  or  police  of- 
fenses, but  is  limited  in  the  matter  of  crimes. 

(c)  Penal  law  has  become  more  and  more  extensive;  it  has  tried 
to  foresee,  by  new  provisions,  all  anti-social  acts,  and  thus  to  fill  up 
the  gaps  which  judicial  experience  had  pointed  out  in  the  arsenal 
of  social  defense.  The  general  scope  of  the  Penal  Code,  especially 
of  its  provisions  as  to  swindling,  breach  of  trust,  and  theft  have  been 
gradually  developed  since  1810.  From  this  point  of  view,  the  act  of 
May  13,  1863  gave  to  the  text  of  the  Penal  Code  a  general  and  care- 
ful revision.  For  example,  the  offense  of  extortion  of  hush-money 
(Art.  406,  §  2)  was  then  foreseen  and  penalized.  Before  that,  the 
law  of  April  28,  1832,  had  defined  as  crimes  or  misdemeanors  :  in 
Arts.  317  and  318,  the  act  of  administering  substances  injurious  to 
health ;  in  Art.  184,  §  2,  a  violation  of  the  domicile  by  a  private 
individual ;  in  Art.  400,  the  embezzlement  or  destruction  of  confis- 
cated objects  ;  in  Art.  408,  the  conversion  of  personal  property  by  a 
gratuitous  bailee  who  was  to  bestow  work  upon  it.  Apart  from  the 
Penal  Code,  important  acts  have  extended  the  domain  of  criminal 
law  to  public  drunkenness  (July  26,  1873),  and  to  professional 
gambling  and  pandering  in  the  public  street  (May  27,  1885,  Art.  17). 

(d)  The  reformation  of  the  prisoner  through  punishment,  to 
which  the  Code  of  1810  gave  no  thought,  has  since  then  become 
one  of  the  chief  objects  of  penal  law.  To  this  end,  the  legislator 
has  employed  two  methods :  1st,  the  method  of  transportation  to 
penal  colonies,  regulated  by  the  acts  of  June  8,  1850  (on  deporta- 
tion), and  of  ]May  30,  1854  (on  hard  labor) ;  2d,  the  penitentiary 
method,  of  which  some  interesting  applications  are  found  in  the 
acts  of  August  5,  1850,  on  the  education  and  the  protection  of 
juvenile  offenders,  in  the  act  of  June  5,  1875,  of  the  reform  of  de- 
partmental prisons,  and  in  the  act  of  August  14, 1885,  on  the  means 
of  preventing  recidivism. 

(e)  The  increasing  number  of  recidivists  proved,  in  spite  of  these 
efforts,  the  inadequacy  of  the  penal  and  penitentiary  regime  ;  and 
it  was  concluded  that  the  problem  of  criminality  could  be  solved 
only  by  distinguishing  radically  between  first  offenders  and  recidi- 
vists. To  avoid  prison  sentences  for  the  former,  and  to  remove 
the  latter  from  a  social  environment  where  they  cannot  live  without 
relapsing  into  their  criminal  activities,  —  such  seems  to  have  been 
the  attempted  program  of  the  act  of  March  26,  1891,  which  intro- 
duced the  suspension  of  sentence,  and  of  the  act  of  May  27,  1885, 
on  the  relegation  of  recidivists. 

340 


Chapter  XIV]  FRANCE  IN  THE   1800  S  [§626 

To  sum  up :  In  appraising  the  evolution  of  penal  law  in  France 
since  1810,  it  may  be  said  that  our  legislation  has  proceeded  spon- 
taneously —  unconscioush',  indeed  —  towards  a  realization  of  the 
threefold  aim  above  assigned  to  its  efforts  :  namely  to  remove  from 
incorrigible  oft'enders  the  means  of  doing  harm,  to  improve  those 
who  are  capable  of  returning  to  rectitude,  and  to  intimidate  the 
occasional  offender. 

As  our  modern  penal  law  makes  its  appearance  on  the  stage,  the 
third  of  these  is  its  feature,  viz.  intimidation.  In  the  Code  of 
1810,  the  penalties  seem  to  have  no  other  purpose.  To  check  the 
offender,  it  was  thought  sufficient  to  counteract  the  occasion 
that  tempted  him  with  the  threat  of  the  punishment  that  must  fall 
upon  him.  Both  the  prohibitions  and  the  penalties  are  marked, 
on  the  whole,  by  an  excessive  severity.  But  it  was  soon  perceived 
that  this  system  defeated  its  own  end.  The  numbers  of  recidivists 
showed  that  the  places  of  detention  became  hot-beds  of  mutual 
corruption.  So  the  second  aim,  that  of  improving  the  offender 
through  punishment  (an  aim  theretofore  foreign  to  the  Penal 
Code)  began  to  attract  attention.  This  idea  had  its  strong  par- 
tisans, —  some  of  them  even  fanatics.  The  law  then  started  tim- 
idly on  the  penitentiary  path.  We  can  observe  it  experimenting 
and  groping  for  results ;  Ave  notice  first,  the  favor  and  then  the 
disfavor  accorded  to  the  cellular  system.  Next,  the  law  passed 
to  the  first  theory  above  noted ;  in  the  face  of  the  rising  wave  of 
recidivism,  it  resolved  to  eliminate  the  incorrigibles  by  energetic 
methods.  The  permanent  seclusion  of  recidivists  seemed  to  be 
the  last  goal  of  this  evolution. 

But  the  recidivist  (it  was  perceived)  is  a  direct  product  of  all 
punishment  by  imprisonment,  as  practised  in  France.  So  the  plan 
evolved  was  to  avoid  sending  to  prison  those  who  had  never  yet 
entered  it.  Then  a  distinction  took  shape  and  developed,  —  the 
attempt  to  provide  a  system  for  first  ofYenders  difterent  from  that 
for  recidivists.  All  this,  however,  was  not  well  reasoned  out; 
no  general  plan  of  reform  was  conceived  and  executed.  From  hand 
to  mouth,  under  the  sway  of  the  needs  and  the  ideas  of  the  moment, 
sundry  laws  have  been  drafted  and  voted.  The  modern  legisla- 
tor has  never  squarely  faced  this  problem,  the  only  and  the  real 
problem  of  modern  penal  law,  namely :  Given  the  various  classes 
of  criminals,  to  systematize  the  punishm.cnts  adapted  to  each  of  them. 

After  all,  can  he  solve  it?  Unquestionably.  The  true  aim 
should  be  to  provide  repressive  measures  for  the  occasional  of- 

341 


§  (Y2h\  MODERN  TIMES  [Pakt  I,  Title  V 

fc'iulcr,  seclusionary  measures  for  incorrigi})les,  and  penitentiary 
mca.siircs  tor  those  susceptible  to  improvement.  In  spite  of  the 
improvements  introduced  into  the  Penal  Code,  it  is,  incontestably, 
no  longer  in  harmony  with  the  social  environment.  Though  the 
enumeration  and  definition  of  offenses  has  been  made  broader  and 
more  flexible,  by  the  Supreme  Court's  interpretation  —  an  ad- 
mirable body  of  judicial  law,  sagacious  and  cautiously  progressive, 
which  has  succeeded  in  continually  rejuvenating  our  hoary  old 
Code,  —  yet  the  penal  system  has  remained  very  inadequate  and 
very  defective,  in  spite  of  the  successive  (and  inconsistent)  amend- 
ments which  it  has  undergone.  In  some  respects,  the  gradation  of 
punishments  has  been  oddly  reversed.  Detention  in  jail  is  more 
deterrent  than  a  sentence  to  hard  labor.  Deportation,  as  applied 
to  political  offenders,  means  nothing.  Banishment  (an  inheritance 
from  the  former  Codes)  can  no  longer  be  employed  as  prescribed. 
Imprisonment,  with  the  promiscuity  which  now  characterizes  it, 
does  not  intimidate,  does  not  reform,  and  merely  swells  the  budget. 
A  general  recasting  of  the  system  of  penalties,  and  especially  of 
the  penitentiary  system,  becomes  imperative,  therefore,  in  France. 
But  after  the  task  of  the  law  comes  that  of  the  judge ;  and  for 
us  the  latter  is  the  crucial  point.  The  law  must  leave  to  the 
courts  the  liberty  to  adapt  to  the  difTerent  temperaments  of  indi- 
vidual offenders  the  three  methods  —  exclusive,  repressive,  and 
penitentiary  —  the  general  principles  which  the  law  was  entitled 
to  lay  down.  The  individualization  of  punishment,  therefore,  is 
the  imperative  need  in  the  scientific  Codes  of  the  future.  And 
the  general  principles  of  extenuating  circumstances,  of  the  suspen- 
sion of  sentence,  and  of  conditional  liberation,  are  only  stages  in 
the  path  along  which  reforms  must  be  directed.^ 

^  A  commission,  charged  with  preparing  a  general  reform  of  all  our 
penal  legislation,  was  appointed,  in  1887,  by  the  Ministry  of  .Justice. 
The  "Journal  officiel"  of  March  27,  1887  published  a  report  on  this  sub- 
ject, addressed  to  the  President  of  the  Repubhc,  by  the  Keeper  of  the 
Great  Seal.  As  a  result  of  this  report,  a  decree  was  issued,  dated  March 
2G,  1887,  providing  for  this  commission  and  appointing  its  members.  The 
commission  was  reorganized  June  30,  1892,  and  divided  into  four  sec- 
tions :  crimes  and  misdemeanors  against  the  public  weal,  against  persons, 
against  property,  and  special  laws.  The  first  commission  published  a 
draft  in  1889,  containing  112  Articles,  and  entitled:  "Book  I.  of  offenses 
in  general,  and  of  penalties."  The  text  is  given  in:  "Bulletin  de  la 
soeiete  generale  des  prisons",  1893,  p.  757;  Molinier  &  Vidal,  "Traite 
theorique  et  pratique  de  droit  penal ",  II,  1-27.  For  a  critique,  see  Champ- 
co77ununal,  "Examen  critique  et  compare  du  projet  du  Code  penal",  1896 
("Journal  des  parquets",  1895,  1896);  A.  Gautier,  in  "Revue  penale 
Suisse",  1894,  p.  46.  As  a  whole,  the  draft  is  of  mediocre  value,  and 
received  only  moderate  favor. 

342 


Chapter  XV 


GERMANY  SINCE   1S13 


63. 


§64. 
§65. 


§66. 


The  Criminal  Codes  of  the 
First  Half  of  the  1800  s; 
Influence  of  the  Bavarian 
Code ;  Effect  of  the  Pohti- 
cal  Agitation  of  1848. 

The  Prussian  Code  of  1851. 

Influence  of  the  Prussian 
Code  ;  The  Bavarian  Code 
of  1861. 

Progress  towards  Greater 
Legal  Unity  in  Germany. 


The  1869  Draft  of  a 
Criminal  Code  for  North 
Germany. 

§  67.  The  National  Code  of  1870 ; 
Its  Character ;  Criticism 
of  the  Code  ;  Its  Adoption 
as  the  Code  of  the  Empire. 

§  68.  The  Criminal  Law  Amend- 
ment Act  of  1876.  Other 
Criminal  Laws. 

§  69.     The  Draft  Code  of  1909. 


§  03.^  The  Criminal  Codes  of  the  First  Half  of  the  1800  s.  —  Tlie 
conflict  of  the  various  theories  of  criminal  law,  aroused  by  Feuer- 
bach  and  Grolmann,  did  not  subside  throughout  the  century ;  but 
it  came  to  exercise  a  considerable  influence  upon  the  development 
of  even  the  positive  law  itself.  Alongside  this  philosophical  tend- 
ency, there  came  into  play  also  an  historical  tendency,  originating 
(in  one  of  its  phases)  in  the  researches  into  Roman  law,  led  by  Hugo 
and  Savigny,  and  (in  another)  in  the  researches  into  Germanic  law 
inspired  by  Eichhorn  and  Grimm.  In  this  period,  also,  the  science 
of  criminal  law  came  to  be  the  common  field  of  study  for  all  civil- 
ized nations.  For  in  spite  of  certain  national  peculiarities,  which 
may  be  easily  accounted  for,  it  is  founded  upon  hiunan  and  psy- 
chological conditions  common  to  all.  Comparative  criminal  law, 
and  also  the  science  of  penology  (which  owes  much  of  its  stimulus 
to  the  so-called  "  theory  of  reformation  "),  received  a  lasting 
service  from  the  numberless  essays  and  minor  writings  of  the  in- 
defatigable Mittermaier,  an  ever-constant  and  intrepid  champion 
of  the  cause  of  freedom  and  humanity. 

Influence  of  Feuerbachs  Bavarian  Code.  —  Feuerbach's  ad- 
vanced Bavarian  Code  immediately  served  as  a  model  and  as  a 

'  [The  first  paragraph  of  this  section  is  transferred  from  §  69,  which 
formed  the  closing  section  of  Part  I  in  the  treatise  of  Von  B.^r.  —  Ed.] 

343 


§  63]  MODERN  TIMES  [Pakt   I,  Titlk  V 

roiiiuhitioii  for  that  series  of  criminal  legislation  -  which  was  under- 
taken in  most  of  the  German  States  after  the  passing  of  French 
supremacy.  The  01(len})ur<j;  Criminal  Code  of  September  10, 
lcS14,  imitated  almost  exactly  that  of  Bavaria.  The  Hanoverian 
Code  of  August  8,  1840,^  although  a  long  time  was  spent  in  pre- 
liminary drafts  and  investigation,  used  the  Bavarian  Code  as  its 
foundation. 

The  legislation  of  this  period,  and  the  special  statutes  dealing 
witli  criminal  procedure  ^  which  in  part  preceded  it,  eliminated  a 
condition  of  uncertainty  and  anarchy  in  the  criminal  law  which 
to  us  now  seems  intolerable,  and  also  abolished  a  large  nimaber  of 
anachronisms  ■'  which  still  maintained  at  least  a  technical  legal 
existence.  In  these  ways  they  conferred  a  genuine  benefit  upon  the 
people  and  the  courts.  K^  compared  with  the  Bavarian  Code  many 
improvements  were  introduced  in  particular  details,  and  there  was 
more  and  more  of  a  tendency  to  depart  from  the  biased  attitude 
of  Feuerbach.  A  greater  field  was  conceded  to  judicial  discretion ; 
and  there  was  a  simplification  of  definitions  and  distinctions  in 
the  "  General  "  as  well  as  the  "  Special  "  portions.  Even  at  the 
present  time  one  can  utilize  as  a  not  unprofitable  source  of  instruc- 
tion the  often  quite  thoroughgoing  debates  of  the  legislative  as- 
semblies of  the  various  States,  as  they  are  preserved  in  the  better 
commentaries  upon  the  several  Codes.  Little  by  little,  greater 
attention  came  to  be  given  to  political  offenses  (which  had  thereto- 
fore been  neglected  by  jurists),  and  especially  to  the  question  of 
possible  excuses  for  resistance  to  the  executive  power  of  the  State. 

2  Cf.  Slenqlein,  "Sammlung  der  deutsehen  Strafgesetzbücher"  (3  vols. 
München,  1858).  A  systematic  and  comparative  presentation  is  given 
in  Häberlin,  "Grundsätze  des  Criminalrechts  nach  den  neuesten  deutschen 
Strafgesetzbüchern"  (4  vols.  1845-1849). 

'  Leonhnrdt,  "Commentar  über  das  Criminalgesetzbuch  für  das  Königr. 
Hannover"  (2  vols.  1846,  1851).  "Magazin  für  hannoversches  Kecht" 
(1850).     "Neues  ISIagazin"  (1860  e<  seg. ;    now  discontinued). 

*  In  Hannover  e.g.  torture  was  not  abolished  legally  until  ^Nlareh  25, 
1822. 

^  For  example,  according  to  the  law  obtaining  in  the  Kingdom  of 
Saxony,  for  every  theft  of  a  value  of  more  than  12§  Thaler  and  for  every 
theft  of  a  value  of  more  than  50  Thaler  there  must  be  inflicted  a  sentence 
of  eight  and  ten  years'  penal  servitude  respectively.  For  every  starting 
of  a  fire,  by  even  the  slightest  negligence,  the  sentence  of  death  by  burn- 
ing was  imposed  (this  according  to  a  "Mandat"  of  1741).  Concerning 
these  and  other  anachronisms  in  the  Kingdom  of  Saxony,  cj.  von  Wächler, 
"Das  königl.  sächsische  und  thüringische  Strafrecht"  (1857),  pp.  22,  23; 
he  says:  "These  penalties  had  always  been  employed  by  the  Saxon 
courts,  even  in  modern  times,  until  the  publication  of  the  Criminal  Code, 
and  in  such  cases  it  was  only  by  the  exercise  of  pardon  that  the  law  could 
be  reconciled  with  justice." 

344 


Chapter  XV]  GERMANY  SINCE   1813  [§  63 

On  the  other  hand,  however,  there  is  a  marked  absence  of  that 
bold  legislative  spirit  by  which  the  end  of  the  1700  s  and  even  the 
beginning  of  the  1800  s  were  distinguished.  There  is  often  mani- 
fested a  certain  timidity,  and  this  is  by  no  means  limited  to  the 
governing  bodies.  The  punishment  of  flogging  found  energetic 
and  effective  adherents ;  and  for  a  long  time  we  encounter  examples 
of  useless  torment  attached  in  graver  cases  to  the  punishment  of 
imprisonment  (chains  and  wooden  hobbles  on  the  legs).''  This 
phase  of  development  is  especially  exemplified  in  the  Criminal 
Code  of  the  Kingdom  of  Saxony  ^  of  i\Iarch  30,  1838,^  and  in  the 
Wiirtemberg  Criminal  Code  ^  of  ]\Iarch  1,  1839.^'^  The  latter  was 
a  more  original  work  than  the  former  and  even  more  dominated 
by  the  deterrent  theory.  With  only  a  few  changes  the  Saxon 
Code  went  into  effect  also  in  Saxe-Altenberg,  in  Saxe-]\Ieiningen, 
and  in  Schwarzburg-Sondershausen.^^  A  quite  original  and  meri- 
torious code  of  this  period  in  the  Criminal  Code  of  Brunswick 
of  1840,^^  which  is  remarkable  for  its  comparative  brevity  and 
for  its  preservation  of  greater  freedom  of  judicial  discretion. ^-^ 
No  provision  is  made  for  corporal  punishments  as  part  of  a 
judicial  sentence ;  and  §  13  contains  the  following  important 
principles : 

"  All  convicts  are  to  l^e  placed  at  such  work  as  will  be  fitted  as 
nearly  as  possible  to  their  ])hysical  capacity  and  their  pre\ious 
civic  position.  As  far  as  compatible  with  this  principle,  harder 
labor  is  to  be  assigned  to  those  sentenced  to  severe  punishment.  .  .  . 

"  No  one  sentenced  to  imprisonment  can  be  employed  against 
his  will  either  in  public  work  or  in  work  the  performance  of  which 

"  C/.  "Königl.  Sachs.  Criminalgesetzbuch",  Art.  8,  22.  "Commen- 
tare"  by  Weiss  (2  Parts,  2d  ed.  1848)  and  Held  and  Siebdrat  (1848).  Cf. 
von  Wächter  (previous  note),  pp.  35,  30. 

^"Königl.  Sachs.  Criminalgesetzliuch",  Art.  7. 

^  Cf.  also  Herrmann,  "Zur  BeurthciUing  des  Entwurfs  eines  Criminal- 
gesetzbuches  für  das  Königreicli  Sachsen"  (183()). 

^  As  to  this  Code,  cf.  Miller inaier,  "Archiv  des  Criniinalrechts"  (1838), 
pp.  319  et  seq.  In  this  Code  (which  for  that  period  was  a  rehitively  mild 
one)  there  was  capital  punishment  for  most  cases  of  robbery,  for  extor- 
tion, incendiarism,  and  for  one  case  of  perjury.  Penal  servitude  for  life 
was  used  frequently. 

'""Voluminous  "Commentare"  by  Hepp  (2  vols.  1839,  1842)  and 
Hufnagel  (3  vols.  1840-1844). 

"  1841,  1844,  1845. 

'2  "Criminalgesetzbuch  für  das  Herzogthum  Braunschweig  nebst 
Motiven"  (1840)  by  Breymann. 

''  §  ()2  confers  upon  the  courts  an  apparently  extensive  right  of  leniency 
where  there  is  a  coincidence  of  sc^veral  mitigating  circumstances.  How- 
ever, cf.  the  restrictions  upon  this  right  of  leniency  in  respect  to  high 
treason  and  most  cases  of  murder,  in  §§81,  145. 

345 


§  03]  MODERN  TIMES  [Part  I,  Title  V 

would  by  virtue  of  his  civic  status  entail  for  him  an  aggravation 
of  the  sentence. 

"  Convicts  .  .  .  who  themselves  defray  the  cost  of  the  execution 
of  the  penalty  may  choose  for  themselves  work  compatible  with  the 
prison  system  and  may  retain  the  profit."  ^* 

The  Criminal  Code  of  the  Grandduchy  of  Hesse  ^^  was  prepared 
with  greater  originality  as  to  individual  details.  It  is  upon  the 
whole  an  excellent  work,  similar  in  character  to  the  Brunswick 
Code,  although  rather  prolix,  and,  especially  in  its  "  General  Por- 
tion ",  allowing  little  range  for  judicial  practice  and  legal  science. 
This  code  recognizes  three  varieties  of  imprisonment,  the  peniten- 
tiary, the  reformatory,  and  the  jail.^^  Imprisonment  in  a  for- 
tress ^^  is  prescribed  for  the  offense  of  duelling  and  also  as  an  alter- 
native to  the  reformatory. 

A  marked  resemblance  ^^  to  this  latter  code  is  shown  by  the  Code 
of  Baden  of  March  6, 1S45.  This  was  similar  in  length,  quite  prolix, 
somewhat  minute  in  all  directions  and  often  much  given  to  de- 
tail.^^  The  so-called  Thiiringian  Code  which  by  agreement  went 
into  effect  in  1850  in  Saxe-Weimar,  Saxe-]\Ieiningen,  Coburg- 
Gotha,  Schwarzburg-Rudolstadt,  and  Anhalt-Dessau,  may  be  re- 
garded as  a  development  of  the  Saxon  Criminal  Code,  although 
with  variations  for  the  respective  States.  It  laid  claim  to  progress 
in  that  it  abolished  the  death  penalty ;  ^°  but  in  other  respects  it 
was  below  the  standard  of  the  Hessian  Code. 

The  introduction  of  railroads  and  telegraphs  led  also  to  the 
enactment  at  this  time  of  special  statutes  for  the  protection  of  these 
important  institutions  against  injury  and  danger.  In  the  later 
codes  the  offenses  in  question  were  included  under  the  classifica- 
tion :    off'enses  dangerous  to  the  public  in  general.-^ 

"  The  Brunswick  Code  almost  without  change  was  published  for  Lippe- 
Detmold  on  July  18,  1843. 

15  Breideubach,  "Commentar  über  das  Grosherzoglich  Hessische  Straf- 
gesetzbuch", 1st  vol.,  2d  section,  1842,  1844  (including  the  general  portion 
only). 

^'^  I.e.  "Zuchthaus",  "Correctionshaus",  and  "Gefängniss." 

y  Art.  11.  "The  court  may,  after  a  careful  investigation  of  the  private 
position  and  education  of  the  offender  assign  the  carrj-ing  out  of  the 
punishment  of  the  reformatory  to  a  fortress  or  some  similar  institution." 
Cf.  similar  provisions  in  the  Code  of  Baden,  §§  52,  51. 

1*  The  Code  of  Nassau  of  April  14,  1849,  was  merely  a  modification  of 
that  of  Hesse. 

1' As  to  the  Code  of  Baden,  cf.  the  commentaries  of  Thilo.  Brauer^ 
Puchelt,  and  Jagemann.     Also  Berner,  "Strafgesetzgebung",  p.  207. 

■"  Meiningen  and  Reuss  however  retained  the  death  penalty.  Cf.  Von 
Wächter,  "Sächsisch-thüring.  Strafrecht",  p.  182. 

-1  Cf.  the  Prussian  Ordinance  of  Nov.  30,  1840,  concerning  injury  to 

346 


Chapter  XV]  GERMANY  SINCE   1813  [§  63 

Influence  of  the  Political  Agitation  of  1848.  —  As  a  result  of  the 
political  events  of  the  year  184.S,  and  partly  in  consequence  of  the 
"  Fundamental  Rights  of  the  German  People  ",^^  published  De- 
cember 27,  1848,  corporal  punishment  and  the  death  penalty  were 
abolished  in  a  number  of  the  German  States.  But  many  States 
later  reintroduced  the  death  penalty .^^  After  the  agitation  of  the 
spring  of  1848  many  States  mitigated  their  laws  relating  to  poach- 
ing.-^ The  abolition  of  the  office  of  censor  led  to  the  enactment  of 
special  statutes  relative  to  the  press ;  concerning  this  a  decree  of 
the  Confederation  ^'^  on  July  6,  1854,  established  a  general  standard 
of  a  reactionary  character.  The  Criminal  Code  of  the  Kingdom 
of  Saxony  of  1855,  may  also  be  regarded  as  a  revision  of  an 
earlier  Code  (of  1838),  although  a  revision  more  extensive  in 
character.  In  spite  of  many  excellent  features,  it  is  not  of  merit, 
and  in  many  respects  exhibits  the  climax  of  the  reactionary 
period  of  1850  to  1860,  e.g.  in  increasing  the  severity  of  the  punish- 
ment of  imprisonment  by  leg  irons  and  wooden  hobbles,  and  even 
by  corporal  punishment  ^^  (the  so-called  "  Willkomen  "  i.e.  wel- 
come !).-^ 

railroads  and  the  Prussian  Ordinance  of  June  15,  1849,  concerning  the 
punishment  of  offenses  against  the  telegraph. 

--  "Grundrechte",  §  9:  "Except  as  provided  by  martial  law  and  the 
law  of  the  sea  in  cases  of  mutinj%  the  death  penalty  is  abolished,  as  is  also 
the  pillory,  branding,  and  corporal  punishment." 

'-■'  In  the  Kingdom  of  Saxony,  in  accordance  with  the  "Grundrechte", 
corporal  punishment  was  abolished  by  an  ordinance  of  April  2Ü,  1849, 
and  in  the  upper  Saxon  Chamber  the  sovereign  declared  that  death  penal- 
ties not  theretofore  executed  would  be  remitted.  Cf.  r.  Wächter,  pp.  34. 
178.  In  Wiirtemberg,  capital  punishment  was  abolished  by  a  statute  of 
Aug.  13,  1849,  Art.  I,  and  again  introduced  by  a  statute  of  June  17,  1853. 

-■•  Cf.  e.g.  the  Bavarian  statute  of  July  25,  1850,  "dealing  with  injury 
to  the  chase"  ;  also  the  Hanoverian  statute  of  Aug.  25,  1848  (modifying 
a  special  statute  of  1840). 

2^  This  required  promulgation  as  law  in  the  several  States  and  conse- 
quently did  not  everywhere  actually  go  into  effect. 

26  Cf.  von  Wächter,  pp.  189  et  seq.  Cf.  also,  for  example,  the  group  of 
unfortunate  provisions  contained  m  Cap.  V  of  the  "  General  Portion  " 
having  to  do  with  accomplices,  or  the  juristically  indefensible  Art.  247 
concerning  self-redress,  and  Art.  338,  which  are  typical  of  a  State  that 
exercises  a  meddlesome  police  control  and  are  models  of  bad  wording. 
"  He  who  through  intentional  dissemination  of  false  reports  concerning 
the  property  or  personal  relations  of  another  or  he  who  by  repeating  such 
reports  as  facts  causes  disadvantage  to  another  or  hinders  his  advantage 
is  upon  complaint  punishable  with  imprisonment  not  exceeding  four 
months." 

"  Krug,  "  Commentar  zu  dem  Strafgesetzbuche  für  das  Königreich 
Sachsen"  (1st  ed.  1855,  4  divisions),  (2d  ed.  18(51,  3  divisions).  Also 
Siebdrat,  "  Deutsches  Strafgesetzbuch  für  das  Königr(>ich  Sachsen  mit 
Commentar  "  (1862).  Of  importance,  also,  is  "  Zeitschrift  für  Rechtspflege 
und  Verwaltung  zunächst  für  dem  Königreich  Sachsen  "  (1&-58  f  /  seq.),  and 
Schwarze,  "  Allgemeine  Gerichtszeitung  für  dem  Königreich  Sachsen." 

347 


§  G41  MODERN  TIMES  [Part  I,  Title  V 

§  ()4.  Legislation  in  Prussia.  —  There  was  a  peculiar  course  of 
(lovelopmcut  in  I'russia,  wliicli  at  the  end  of  the  1700  s  began 
to  be  the  center  of  reactionary  principles  in  matters  of  criminal 
law.  Offenses  against  property,  which  at  that  time  were  in- 
creasing in  frequency  (a  thing  readily  explainable  by  the  disturbed 
condition  of  the  times),  occasioned  the  "  Circularverordnung  " 
of  February  20,  1799,  dealing  with  theft  and  other  crimes  against 
the  security  of  property.  This  was  so  ambiguously  expressed  ^ 
that  there  was  room  to  doubt  whether  it  really  represented  a  more 
vigorous  repression  of  the  offenses  in  question,  or  whether  (as 
viewed  by  some  courts)  it  introduced  milder  punishments.  Since 
the  Prussian  penal  institutions  -  were  for  a  large  part  in  a  state  of 
utter  neglect,^  the  remedy  ^  was  for  a  time  sought  in  the  expedient 
of  flogging,  which  was  specially  recommended  and  employed 
(especially  for  suspects,  who  were  in  this  way  brought  to  a  confes- 
sion). At  the  same  time,  that  fear  of  demagogues  and  revolution- 
ists so  long  entertained  in  Prussia  began  to  bear  fruit  in  provisions 
against  students,  secret  societies,  and  acts  tending  to  public  dis- 
orders. Together  with  the  law  of  1799,  above  mentioned,  a  num- 
ber of  new  ordinances  (some  of  them  most  extraordinary)  directed 
against  libels  and  insults  (in  which  the  legislator  met  much  diffi- 
culty in  handling  the  distinction  between  civil  and  military  persons) 
so  increased  the  general  confusion  that  as  early  as  1S05  a  project 
to  publish  a  new  code  was  even  proposed  by  the  legislative  power 

'  Cf.  e.g.  §  2:  "He  who  for  the  first  time  is  convicted  of  an  ordinary 
theft  shall  undergo  corporal  chastisement,  or,  if  such  punishment  is  not 
feasible  (?)  or  should  be  deemed  insufficient,  shall  be  sentenced  to  im- 
prisonment in  a  reformatory  institution,  to  solitary  confinement,  or  to 
penal  labor."  §  7:  "More  severe  (?)  chastisement  shall  be  inflicted 
if,  etc."  (The  amount  of  ordinary  chastisement  was  not  fixed.)  §  IS 
ordered  imprisonment  imtil  pardon,  for  repeated  thefts  accompanied  A\äth 
violence.  §  12  in  addition  to  Ufe  imprisonment  also  pro\'ided  branding 
and  pubhc  flogging  for  repetition  of  the  crime  of  robbery. 

2  As  to  the  horrible  building  conditions  of  many  institutions,  in  which 
cleanliness  was  absolutely  impossible  and  the  prisoners  were  consumed  by 
vermin,  cf.  the  work  of  the  Prussian  Minister  of  Justice  Von  Arnim, 
"Bruchstücke  über  Verbrechen  und  Strafen"  (2  vols.  1803),  in  which 
the  harmful  condition  of  the  Prussian  system  of  criminal  justice  was  por- 
trayed with  great  candor.  Cf.  especially  II,  pp.  189  et  seq.  Concerning 
the  pitiful  treatment  of  sick  prisoners,  cf.  II,  p.  78.  But  cf.  also  I,  p.  235 
and  II,  p.  39  as  to  the  agreeable  life  in  other  penal  institutions. 

'  The  dilemma  as  to  what  to  do  ^^ith  prisoners  led  even  to  a  cabinet 
order  of  Dec.  28,  1801,  which  under  certain  conditions  contemplated  de- 
portation to  Siberia.  This  was  actually  done.  Cf.  Wagnitz,  "Ideen  und 
Pläne  zur  Verbesserung  der  Polizei-  und  Criminalanstalten "  (Halle,  1801), 
II,  pp.  17,  43. 

*  As  to  the  repulsive  effects  of  this  flogging  in  a  famous  (or  rather 
notorious)  trial,  cf.  Von  Arnim,  I,  pp.  38  el  seq. 

348 


Chapter  XV]  GERMANY  SINCE   1813  [§  64 

itself.'  Nevertheless,  nothino;  came  of  this  other  than  a  number  of 
separate  ordinances  against  secret  societies,  disobedience  of  the 
censor,  crimes  against  the  State,  and  similar  regulations  arising 
from  the  fear  of  demagogues. 

It  was  not  until  1S26  that  the  preparation  of  a  criminal  code  was 
undertaken  under  the  ^Minister  of  Justice,  Count  Dankelmann. 
INIarked  progress  was  shown  by  the  "  General  Portion  "  in  the  draft 
of  1S3Ü,  which  was  substantially  the  work  of  the  Supreme  Court 
Counsellor,  Bode.  However,  Von  Kamptz  (who  in  1830  succeeded 
Count  Dankelmann  as  ^Minister  of  Justice)  sought  to  warp  the  leg- 
islation towards  the  standpoint  of  the  police  regulation  of  the 
"  Landrecht,"  and  revised  it  in  an  ultra-reactionary  spirit.  The 
provisions  of  the  draft  appearing  in  1836  are  almost  incred- 
ible.^ Aggravated  forms  of  the  death  penalty,  as  well  as  corporal 
chastisement  (to  be  administered  publicly!),  again  make  their 
appearance. 

It  is  impossible  here  to  undertake  to  follow  out  in  detail  the  com- 
plicated history  of  the  long  preliminary  work  for  the  Prussian 
Criminal  Code.  One  may  attribute  the  merit  of  the  preliminary 
draft  of  1843  ''  to  its  subjection  to  public  criticism.  But  it  is  as- 
tonishing to  find  in  the  draft  of  1847  (which  in  other  respects  shows 
more  of  the  influence  of  the  law  of  France  and  the  Rhine  countries) 
pro\isions  by  which,  in  certain  graver  crimes,  the  death  penalty  is 
aggravated  by  public  exposure  of  the  head  of  the  executed  crim- 
inal and  also  by  cutting  off  the  guilty  right  hand  after  death, 
and  also  provisions  by  which  imprisonment  in  penitentiaries  was 
aggravated  by  corporal  punishment  and  imprisonment  in  jails 
by  curtailment  of  food  and  by  uncomfortable  places  of  repose. 
There  was  also  imposed  confiscation  of  all  the  property  of  those 
guilty  of  high  and  ordinary  treason  and  of  e\'ading  military 
service. 

The  Code  of  1851.  — •  The  year  1848  marked  the  end  of  these 
vacillations,  and  the  Prussian  Criminal  Code  of  April  14,  1851,^ 
exhibited  in  a  number  of  important  provisions  (although  not  in  all 

'■'  Cf.  the  publication  permit  for  the  "  Criminalordnung  für  die  preus- 
sisehen  Staaten"  of  Dec.  11,  1S05. 

•^  Bcrncr,  pp.  224  d  seq.,  gives  a  selection  of  examples.  For  example, 
the  dissemination  of  i)rinciples  and  opinions  which  tnifj:ht  incite  or  en- 
courage treasonable  plots  or  sentiments  was  punished  by  from  two  to  six 
years  in  the  penitentiary. 

'  Cf.  especially  Bcrncr,  pp.  226  et  seq. 

^  The  draft  appearing  in  1849,  based  upon  the  decrees  of  a  commission 
of  the  Department  of  Justice,  contained  substantially  the  provisions  of  the 
later  code. 

349 


§  ()4]  MODERN   TIMES  [Part  I,  Title  V 

respects)  a  most  important  progress  in  German  legal  development.* 
It  revealed  a  step  in  advance,  to  which  (apart  from  the  Carolina,  in 
its  day)  perhaps  only  that  made  by  the  Bavarian  Code  of  181.')  may 
be  compared.^"  All  this  was  substantially  due  to  the  far-reaching 
influence  of  the  French  Code,  which  until  1851  had  been  in  effect 
in  the  Prussian  Rhine  Provinces.  Like  the  French  Code,  the  Prus- 
sian is  remarkable  for  a  brevity  of  composition,  avoiding  super- 
fluity and  the  rejection  of  all  pedantic  vagaries,  and  therefore 
by  the  greater  freedom  which  it  allows  for  the  scientific  regulation 
of  the  provisions  of  the  "  General  Portion."  It  also  resembles 
the  French  Code  in  that  (more  perhaps  than  any  other  of  the  earlier 
German  Codes)  it  is  adaptable  to  use  under  the  jury  system.  It 
bears  a  further  similarity  to  the  French  Code  in  being  free  from 
moralizing  and  theological  tendencies,  and  generally  (but  not 
entirely)  ^^  free  from  that  meddlesomeness  which  we  encounter 
in  so  many  provisions  of  the  earlier  local  legislation.  It  adopts 
the  triple  classification  of  punishable  acts  as  "  Verbrechen ", 
"  Vergehen  ",  and  "  Uebertretungen  'V-  and  in  its  "  Special  Por- 
tion "  completely  separated  the  last  class  of  offenses  from  the  two 
other.  In  an  appendix  it  deals  with  only  some  of  the  offenses 
against  police  regulation.  On  the  other  hand,  while  it  places  limits 
upon  punishment  for  "  Uebertretungen  ",  it  extends  to  them  a 
number  of  the  most  important  provisions  of  the  "General  Portion." 
The  Code  possesses  considerable  advantages  over  the  French 
Code.  The  "  General  Portion  "  was  conceived  in  a  comprehen- 
sive spirit,  under  the  influence  of  German  jurists.     The  various 

^  Cf.  Goltdammer,  "Materialien  zum  Straf gesetzbuehe  für  die  preuss-r 
ischen  Staaten"  (1851,  1852);  Bescler,  " Commentar "  (1851);  Oppen- 
hoff/'üas  Strafgesetzbuch  für  die  preussliehen  Staaten,  erläutert  aus  den 
JMaterialien,  der  Reehtslehre  und  den  Entscheidungen  des  Obertribunals" 
(6th  ed.  1869);  Temnie,  "Lehrbuch  des  preussl.  Strafreehts"  (1853); 
Hälschner,  "System"  (2  Parts,  1855,  1868,  not  completed;  Part  I  con- 
tains the  "General  Portion");  Oppcnhoff,  "Die  Rechtsprechung  des 
königl.  Obertribunals  in  Strafsachen"  (1861  et  seq.).  "Archiv  für 
preussisches  Strafrecht",  established  hy  Goltdammer  in  1853,  in  1871 
changed  to  "Archiv  für  deutsches  und  preussisches  Strafrecht",  and  still 
appearing,  ed.  Kohler,  a  volume  annuaUj'. 

1°  Cf.  Mittermaier,  "Archiv  für  preussisches  Strafrecht"  (1851),  pp.  14 
et  seq. 

"This  recalls  the  well- known  "Hatred  and  Contempt"  paragraph 
(§  101)  :  "Anyone  who  through  public  assertion  or  dissemination  of  false 
or  distorted  statements  of  fact,  or  tlu*ough  public  abuse  or  derision,  exposes 
the  institutions  of  the  State  or  the  regulations  of  the  authorities  to  hate 
and  contempt  shall  be  punished  by  a  fine  not  exceeding  200  Thaler  or  by 
imprisonment  not  exceeding  two  months."  {Cf.  also  §  101)  §  151  of 
Part  II,  Tit.  20  of  the  "General  'Landreeht.'" 

'*  I.e.  approximatel.v  "crimes",  "misdemeanors",  and  Eolations  of  law 
not  amounting  to  a  misdemeanor. 

350 


Chapter  XV]  GERMANY  SINCE    1813  [§  G4 

offenses  are  more  carefully  and  precisely  defined  and  the  Code  is 
uniformly  milder  than  the  "  Code  Penal  "  as  it  appeared  originally 
in  1810.  Xo  mention  is  made  of  corporal  punishment,  and  im- 
prisonment is  simply  divided  into  two  kinds  :  ^^  imprisonment  in  a 
penitentiary  and  in  a  jail.^^  There  is  also,  for  certain  offenses,  con- 
finement in  a  fortress,  which,  while  very  mild  in  character,  might 
possibly  be  of  long  duration.  Apart  from  murder  and  high  treason. 
the  death  penalty  is  provided  for  grave  cases  of  manslaughter  and 
for  crimes  endangering  the  general  public ;  but  it  is  to  be  inflicted 
within  the  prison  walls. 

In  many  respects  and  especially  in  regard  to  its  theories  of  par- 
ticipation and  attempt,  this  Code  too  closely  followed  the  French. 
Those  provisions  copied  from  the  French  law  (in  many  respects 
commendable),  which  permitted  the  consideration  of  mitigating 
circumstances  in  manj^  cases  (but  by  no  means  in  all) ,  merited  cen- 
sure for  this  very  inconsistency,  and  subjected  the  necessary 
severity  and  logic  of  the  law  to  the  sentiment  of  the  individual 
jury.  Many  of  the  separate  provisions  are  quite  severe,  and  a 
punctilious  interpretation  of  the  courts,  following  too  much  the 
letter  of  the  law,  has  rendered  certain  features  the  more  intoler- 
able.^^ It  may  be  added  that  the  provisions  concerning  the  mode 
of  carrying  out  imprisonment  are  inadequate,  and  in  actual  prac- 
tice, apart  from  the  fact  that  enforced  labor  of  those  confined  for 
"  Lebertretungen  "  fell  into  disuse,  the  treatment  of  convicts  de- 
pended upon  the  unfettered  discretion  of  the  prison  authorities,  — 
even  to  the  infliction  of  solitary  confinement.^^  The  disciplinary 
treatment  of  prisoners  was  covered  neither  by  the  Code  itself,  nor 
by  any  supplementary  statutes ;  and  as  to  a  legal  protection  of, 
for  example,  persons  of  the  educated  class  condemned  not  for 
dishonorable  offenses  but  merely  for  offenses  against  the  press  laws 

"  I.e.  "Zuchthausstrafe"  and  "Gefängnissstrafe." 

"This  divided  also  into  two  classes,  for  "  Vergehen "  and  for  "Ueber- 
tretungen." 

1*  Thus,  for  example,  §  89  dealing  with  insubordination  was  frequently 
so  interpreted  that  opposition  to  acts  of  an  official  which  were  of  doubtful 
legality,  provided  there  was  no  malice  on  the  part  of  the  official,  was  re- 
garded as  punishable.  Certain  supplementary  statutes  made  this  in 
some  respects  less  severe. 

•^  The  memorial  to  the  "Landtag"  by  the  Minister  of  Interior  (March 
26,  1861)  makes  this  assertion.  On  the  contrary,  see  Von  Holtzcndorff, 
"Gesetz  oder  Verwaltungsmaxime,  rechtliche  Bedenkengegen  die  preuss- 
isehe  Denkschrift  betr.  Einzelhaft"  (1861).  The  vi(>w  of  the  Prussian 
government  was  defended  by  Böhlnu,  "Die  Einzelhaft  in  Preussen" 
(1861).  Concerning  certain  tendencies  of  Prussian  prison  authorities  of 
this  period,  cj.  also  Von  IloUzettdorff,  "  Der  BriidiTorden  des  rauhen.  Hauses 
und  sein  Wirken  in  den  Strafanstalten"  (1862). 

351 


§  G5]  MODERN  TIMES  [Part  T,  Title  V 

or  offenses  of  a  purely  political  nature,  against  a  treatment  in  the 
prisons  which  in  the  circumstances  in  question  was  absolutely 
improper,  none  can  be  found  in  this  Code. 

§  65.  Influence  of  the  Prussian  Code.  —  The  practical  useful- 
ness of  the  Prussian  Criminal  Code  caused  a  number  of  smaller 
States  to  take  it  as  a  foundation  for  their  own  criminal  legislation. 
With  minor  changes,  it  was  enacted  as  law  in  Waldeck  and  Pyr- 
mont (1855).^  The  Criminal  Code  of  Lübeck,  except  for  a  few 
really  significant  changes,  corresponds  almost  \'erbatim  with  that 
of  Prussia.^  The  Oldenburg  Code  of  January  31,  1858,  however, 
differed  from  the  Prussian  in  not  retaining  the  death  penalty  and 
in  substituting  imprisonment  for  life;  in  a  few  other  cases,  the 
amount  of  punishment  was  changed ;  except  in  cases  of  life  im- 
]5risonment,  loss  of  rights  as  a  citizen  was  only  temporary.^ 

The  Bavarian  Code  of  1861.  — The  Bavarian  Criminal  Code  of 
November  10,  1861,  which  like  the  Prussian  Code  was  a  result  of 
long  years  of  preparation  and  was  the  last  of  the  more  important 
local  codes,  was  in  many  respects  similar  to  the  Prussian  Code. 
It  resembled  the  Prussian  Code  in  respect  to  punishments  af- 
fecting honor,  and  in  many  cases  retained  the  death  penalty  (al- 
though not  always  the  same  as  in  the  Prussian  Code.)  It  was 
defective,  however,  in  having  a  confused  and  indefinite  system  of 
punishment  by  imprisonment ;  and  it  is  difficult  to  mark  the  dis- 
tinction between  its  jail  and  prison  punishments.  In  Article  19, 
it  accepts  the  system  of  parallel  punishments  (instead  of  imprison- 
ment in  jail  or  prison)  under  certain  conditions  for  persons  of  the 
educated  classes.  In  its  treatment  of  attempts  and  participation, 
the  code  assumes  a  middle  position  between  the  French  and  Ger- 
man law.  It  differs  from  the  Prussian  Code  in  its  "  General  Por- 
tion ",  especially  in  its  rejection  of  a  system  of  extenuating  cir- 
cumstances. However,  Article  68  recognized  limited  mental  ca- 
pacity as  an  extenuating  circumstance ;  and  Article  74  sanctioned 
voluntary  reparation  as  an  extenuating  circumstance^  in  certain 

'  Thus,  also,  in  Anhalt  (by  the  statue  of  Feb.  5,  1852).  Here  however 
it  was  supplanted  in  1864  by  the  Thuringfian  Code.     Cf.  Berner,  p.  257. 

-  Thus  the  Code  of  Lübeck  did  not  recognize  permanent  less  of  priv- 
ileges dependent  upon  honor,  but  only  a  temporary  interdiction  of  these 
privileges.  An  attempt  was  always  given  a  milder  punishment  than  the 
consummated  act.     As  to  details,  see  Berner,  p.  257. 

^  A  comparison  of  the  Oldenburg  and  F*russian  Code  has  been  made  by 
Mittermaier,  in  "Archiv  für  preuss.  Strafrecht"  (1859),  pp.  14  et  seq. 

*  Limitation  of  the  period  within  which  punishment  may  be  inflicted 
for  crime  was  treated  in  quite  a  different  manner.  In  this  respect,  how- 
ever, the  code  is  distinctly  inferior  to  that  of  Prussia. 

352 


Chapter  XV]  GERMANY  SINCE   1813  [§66 

offenses  against  property ;  this  latter,  however,  rested  in  the  dis- 
cretion of  the  judge.  Upon  the  whole,  the  Code  is  appreciably 
milder  than  that  of  Prussia.'' 

Other  States.  —  It  was  not  until  the  year  1866  that  general  codes 
were  enacted  in  Mecklenburg  (two  grand  duchies),  Electoral 
Hesse,®  Schleswig-Holstein,  Lauenburg,  Schaumburg-Lippe,  Bre- 
men, and  Hamburg.  Theoretically  the  Carolina  had  still  obtained 
in  these  countries ;  but  in  reality  the  criminal  law  had  been  shaped 
by  the  usage  of  the  courts  (follow^ing  the  jurists)  and  by  a  number 
of  more  or  less  comprehensive  special  statutes.^ 

§  66.  Progress  towards  Greater  Legal  Unity  in  Germany.  —  The 
political  events  of  the  year  1866  necessarily  gave  a  new  and  now 
more  effectual  incentive  to  endeavors  to  establish  a  general  law  for 
Germany.  Since  the  year  1860  this  had  been  specially  advocated 
by  the  German  Bar  Association.^  As  a  matter  of  fact,  the  Prus- 
sian government  apparently  was  not  planning  for  the  immediate 
formation  of  a  common  North  German  Code;  instead,  its  first 
measure  was  (by  Ordinance  of  June  2oth,  1876)  to  introduce  the 
Prussian  Code  ^  into  its  newly  acquired  territories  of  Hanover, 
Electoral  Hesse,  Schleswig-Holstein,  Nassau,  Hesse-Homburg,  and 
Frankfurt-on-Main,  as  well  as  in  the  ceded  districts  of  Bavaria.^ 

5  For  literature,  see  Berner,  pp.  341  et  seq.  Special  mention  may  be  made 
of  the  commentaries  by  Hocheder  (1862,  not  finished,  only  the  first  volume)  ; 
Stenglein  (2  vols.  1861,1862) ;  Weis  (2  vols.  1863, 1865) ;  Dollmann,  (1862,  not 
finished);  "Sitzungsberichte  der  bayer.  Strafgerichte"  (.5  vols.  1850-53); 
later  " Zeitschrift  für  Gesetzgebung  und  Rechtspflege  in  Bayern"  (1854  e< 
seq.)  ;  Stenglein,  "Zeitschrift  für  Gerichtspraxis  und  Rechts\\issensehaft  in 
Bayern"  (1862;  after  1872  app(>aring  as  "Zeitschrift  f.  deutsche  Geriehts- 
praxis  und  Rechtswissenschaft";    discontinued  in  1880). 

«  Published  in  Electoral  Hesse  with  only  a  few  changes  (the  so-called 
"Philippina.")  As  to  Electoral  Hesse,  cf.  H.  Kersting,  "Das  Strafrecht  in 
Kurhessen." 

^  F'or  the  two  Grand  duchies  of  Mecklenburg  the  following  were  es- 
pecially important :  a  comprehensive  ordinance  concerning  theft  of  1839, 
an  ordinance  of  1843  concerning  offenses  against  pu])li('  order,  and  an 
ordinance  of  1854  as  to  incendiarism.  As  to  the  condition  of  tlu>  law  in 
the  above-mentioned  countries,  cf.  "Motive  zu  dem  Entwürfe  eines  Straf- 
gesetzbuchs für  den  norddeutschen  Bund",  pp.  6  et  seq. 

^  Cf.  "Verhandlungen  des  1.  deutschen  Juristentags",  p.  58;  ibid., 
essay  by  Von  Gross  and  Von  Kräwel  dealing  with  the  introduction  of  uni- 
form German  legislation.  See  also  essay  by  Wahlberg,  p.  63.  As  early 
as  1857,  Kriig  had  published  his  "Ideen  zu  einer  gemeinsamen  Straf- 
gesetzgebung für  Deutschland."  [And  now  .see  Bänke,  "  Der  erst(>  Entwurf 
[1849]  eines  Deutschen  Einlieitsstrafrechts "  (Berlin,  1012).  — Ed.] 

-  As  to  the  condition  of  the  law  in  Hanover.  Schleswig-Holstein,  Elec- 
toral Hesse,  Nassau,  Hessen-Homburg,  Frankfurt-on-Main.  at  the  time  of 
the  annexation,  cf.  Goltdammer' s  "Archiv  f.  preuss.  Strafrecht"  (1866), 
pp.  657-816. 

^  In  Lauenburg,  wliich  was  not  really  absorbed  by  the  Prussian  State 
until  1876,  the  common  law  in  the  meantime  continued  in  force. 

353 


§  GOJ  MODERN  TIMES  [Pakt  1,  Title  V 

But  the  Constitution  of  the  North  German  Confederation  of 
June  2()th  placed  criminal  law  and  criminal  procedure  '  amonj^ 
those  subjects  over  which  the  scope  of  the  legislative  power  of  the 
North  German  Confederation  should  extend.  And,  in  pursuance 
of  a  decree  of  the  Reichstag,  there  was  published  by  the  Prussian 
Minister  of  Justice  •'  towards  the  end  of  July,  1809,  at  the  request 
of  the  Chancellor  of  the  Confederation,  a  draft  of  a  Criminal  Code 
for  the  North  German  Confederation.^ 

The  Draft  of  1869  of  a  Criminal  Code  for  North  Germany.  — ■ 
This  draft  was  substantially  the  work  of  Frietlberg,  who  at 
that  time  was  Supreme  Counsellor  of  Justice,  and  later  Prussian 
Minister  of  Justice.  As  declared  in  its  accompanying  Report,  and 
as  the  conditions  of  the  times  indeed  demanded,  it  took  the  Prus- 
sian Code  as  its  foundation.  It  was,  however,  considerably  less 
severe ;  e.g.  it  limited  capital  punishment  to  a  very  few  cases,  and 
reduced  the  maximum  duration  of  imprisonment  to  fifteen  years. 
In  numerous  respects  it  had  endeavored  to  comply  with  the  de- 
mands of  legal  science ;  particularly  in  its  paragraphs  dealing  with 
attempts  and  the  criminal  capacity  of  children,  it  sought  to  bring 
itself  more  into  accord  with  the  principles  of  the  German  common 
law  instead  of  the  French  principles  adopted  by  the  Prussian  Code. 
It  retained,  however,  the  system  of  extenuating  circumstances,  and 
at  the  same  time  considerably  expanded  its  scope.  Its  important 
change  was  :  the  release  on  parole  of  prisoners  after  they  had  under- 
gone part  of  their  sentence,  —  a  measure  which  (following  the  Eng- 
lish model)  has  been  made  use  of  since  18G2  in  the  kingdom  of 
Saxony,  by  the  pardoning  of  the  ruler  (but  practised  in  accordance 
with  certain  generally  received  principles).  An  endeavor  was 
also  made  to  establish  a  rational  rule  for  the  effect  of  punishable 
acts  upon  capacity  for  holding  offices  of  honor  or  trust,  —  a  rule 
looking  to  the  concrete  case  and  ha^'ing  regard  not  so  much  to  the 
kind  of  punishment  as  to  the  character  of  the  individual  crime. 

^  The  authority  of  the  several  States  to  enact  criminal  laws  was  ob- 
viously not  thereby  revoked  ;  and  so  in  the  Kingdom  of  Saxonj^  on  Octo- 
ber 1st,  1868,  a  revision  of  the  criminal  code  was  published  and  Hamburg 
even  pubhshed  a  new  criminal  code  in  1869. 

^A  very  serviceable  private  draft  was  prepared  by  John  ("Entwurf 
mit  Motiven  zu  einem  Strafgesetzbuche  für  den  norddeutschen  Bund", 
1868). 

*  In  addition  to  the  Report  there  accompanied  this  draft  commen- 
taries on  the  death  penalty  and  the  maximum  duration  of  punishment 
by  imprisonment,  and  also  discussions  of  problems  of  criminal  law  in  the 
province  of  medical  jurisprudence  and  a  comparative  collection  of  criminal 
provisions  from  German  and  foreign  legislation. 

354 


Chapter  XV]  GERMANY  SINCE   1813  [§  07 

The  draft  adopted  the  only  correct  and  practical  attitude  in 
treating  in  matters  of  criminal  law  the  entire  territory  of  the  Con- 
federation as  a  single  territory/  notwithstanding  the  fact  that  the 
Confederation  did  not  constitute  a  homogeneous  State.  For  as 
a  matter  of  fact  criminal  statutes  are  chiefly  influenced  by  the  de- 
gree of  the  civilization  of  the  people  and  in  part  by  their  greater 
or  lesser  amount  of  political  freedom,  and  are  but  comparatively 
little  influenced  by  the  differences  of  the  civil  law.  It  was  recog- 
nized, however,  that  it  was  possible  that  both  treason  and  high 
treason  could  be  committed  against  the  individual  States  of  the 
Confederation  as  well  as  against  the  Confederation  itself,  —  even 
where  this  crime  was  committed  with  a  view  of  helping  some  other 
one  of  the  confederated  States.  Obviously,  a  code  complete  in  the 
sense  that  the  application  of  all  other  criminal  statutes  was  to  be 
precluded  was  not  even  to  be  contemplated.  None  of  the  codes 
of  even  the  larger  States  were  complete  in  this  sense.  It  was  nec- 
essary that  a  certain  field  of  legislation  be  left  to  the  individual 
States.  Care  was  to  be  taken  only  that  the  unity  of  the  law  should 
not  thereby  be  destroyed,  that  the  individual  States  adopt  lofty 
principles  of  punishment,  and  that  no  penalty  should  be  imposed 
for  acts  which  would  be  deemed  unpunishable  under  the  sense  and 
spirit  of  the  Code  of  the  Confederation  by  virtue  of  its  silence  or 
the  limitations  of  its  definitions. 

The  draft  was  quite  deficient  in  respect  to  imprisonment.  There 
were  only  a  few  general  provisions  which  enlarged  or  restricted  the 
field  of  local  legislation,  or  (where  this  was  insufficient)  of  the  regu- 
lative discretion  (especially  in  Prussia)  of  administrative  boards. 
However,  a  uniform  and  thorough-going  regulation  was  not  prac- 
ticable without  providing  for  numerous  incidental  details,  and 
particularly  for  the  undertaking  of  costly  and  permanent  buildings  ; 
and  this  would  have  meant  the  postponement  of  the  entire  statute. 

§  Ü7.  The  Code  of  the  North  German  Confederation.  —  There 
is  perhaps  no  other  example  of  a  code  of  the  importance  of  the 
*'  Norddeutsches  Strafgesetzbuch  "  being  prepared  in  a  large  State 
in  so  short  a  time.  The  preliminary  draft  entrusted  to  a  commis- 
sion appointed  by  the  Bundesrath  on  October  1st,  18()9,  was  on  the 

'The  ideas  and  objections  brought  forward  by  Jleinzc  ("Staats-  und 
strafrechtliche  Erortungen  zu  d(>m  amtlichen  Entwürfe  eines  Strafgesetz- 
buchs für  den  norddeutschen  Bund".  1S70)  have  proved  to  be  without 
foundation.  In  contrast  to  Ileinze,  cj.  Bar  in  "Archiv  f.  preussischen 
Strafrecht"  (1870),  pp.  83  et  seq.,  and  Rmlorff,  "Strafgesetzbuch  für 
d.  deutsche  Reich"  (2d  ed.  p.  19). 

355 


§  67]  MODERN    TIMES  [Part  I,   TiTLE   V 

31st  (lay  of  December,  18G9,  submittefl  to  the  Chancellor.  This 
commission  was  under  the  cluiirmanship  of  Leonhardt,  who  at 
that  time  was  the  Prussian  Minister  of  Justice,  and  among  its  m(jre 
prominent  members  the  above-mentioned  Friedberg,  and  Schwarze, 
tlie  Attorney-General  of  Saxony.  The  Bundesrath  also  promptly 
gave  its  approval^  and  on  February  14th,  1870,  there  was  presented 
to  the  Reischstag  a  draft  of  the  law  with  a  draft  of  its  enacting 
statute  ("  Einführungsgesetz  "). 

Its  Character.  —  It  is  not  to  be  expected  that,  where  so  great 
haste  was  shown,  a  careful  consideration  of  principles  and  their 
application  could  even  be  contemplated.  The  leading  political 
party  w-as  dominated  by  one  thought,  viz.,  to  produce  something,  — 
to  show  that  the  newly  formed  Confederation  was  in  a  position 
to  produce  a  new  legislative  work  of  general  application,  and  to 
cement  quickly  the  national  unity  by  means  of  the  criminal  law. 
However,  there  were  numerous  and  important  changes  from  the 
first  draft,  both  in  matter  and  form.  Thus  the  provisions  of  the 
"  General  Portion  ",  recommended  by  the  committee  of  the 
Bundesrath  to  be  applicable  to  minor  offenses  ("  Uebertre- 
tungen  "),  were  made  applicable  ^  generally.  Offenses  (personal) 
against  the  princes  of  the  Confederation  or  members  of  their  fami- 
lies were  treated  in  a  different  manner,  according  as  there  was  in- 
volved the  ruler  of  the  offender's  nationality  or  the  ruler  of  the 
territory  where  the  act  was  committed.  §  47  of  the  "  General 
Portion  ",  placing  limitations  upon  capacity  for  responsibility, 
was  given  wider  application  ;  and  the  requirement  that  a  complaint 
lodged  by  the  injured  party  precede  a  prosecution  was  extended  to 
a  larger  number  of  cases.  A  new  treatment  was  accorded  to  sen- 
tences to  prison  ("  Zuchthaus  ")  "  ipso  facto  "  affecting  the  right 
to  hold  positions  of  trust  and  honor,  in  that  by  §  28  a  sentence  of 
this  character  had  as  its  immediate  consequence  loss  of  capacity 
to  serve  in  the  army  or  navy  of  the  Confederation  and  permanent 
loss  of  capacity  for  holding  public  office.  This  provision  of  the 
Code,  although  chiefly  due  to  the  influence  of  the  military  element 
in  the  Bundesrath,  was  more  in  accord  with  popular  opinion  than 
the  too  idealistic  treatment  of  this  subject  found  in  the  first  draft. 

Opposition  in  the  Reichstag.  —  In  the  Reichstag  the  draft  was 
also  dealt  with  in  an  extremely  summary  manner.     A  motion  to 

1  Consequently  offenses  ("Uebertretungen")  were  no  longer  dealt 
with  in  a  third  part  but  were  treated  in  a  single  (the  last)  chapter  of  the 
"Special  Portion"  (second)  of  the  Code. 

35G 


Chapter  XV]  GERMANY  SINCE   1813  [§  67 

debate  the  principal  questions  separately  was  rejected.  The 
"  General  Portion  ",  and  the  first  seven  chapters  of  the  "  Special 
Portion  "  dealing  chiefly  with  political  offenses,  were  given  imme- 
diate discussion  in  open  session.  Chapters  9-23  were  referred  to  a 
committee  of  twenty-one  members.  The  question  of  capital  pun- 
ishment nearly  brought  about  the  failure  of  the  entire  work.  At 
the  second  debate  in  open  session,  on  March  1st,  1S70,  the  Reichs- 
tag, by  a  majority  of  ILS  votes  to  (SI,  voted  for  the  abolition  of  the 
death  penalty.  (It  had  in  the  meantime  been  abolished  in  the 
Kingdom  of  Saxony.)  The  Bundesrath,  howe\'er,  by  an  over- 
whelming majority,  voted  to  retain  the  death  penalty  for  murder 
and  for  heinous  cases  of  high  treason.^  On  the  third  reading,  after 
the  Chancellor,  Count  von  Bismarck,  had  cast  the  weight  of  his 
authority  in  favor  of  the  retention  of  the  death  penalty,  the  Reichs- 
tag, both  in  this  matter  and  in  a  matter  touching  the  procedure 
for  certain  political  offenses,  acceded  to  the  view  of  the  Bundesrath. 
The  Bundesrath  was  thus  enabled,  at  its  session  of  March  2öth, 
1870,  to  give  the  Code  its  unanimous  approval ;  and  the  Code, 
together  with  its  enacting  law,  received,  on  May  3Ist,  the  assent 
of  the  head  of  the  Confederation,  and  on  June  8th,  1870,  was  pub- 
lished in  Number  16  of  the  "  Bundesgesetzblatt." 

Changes  made  by  the  Reichstag.  —  The  draft,  however,  under- 
went a  considerable  number  of  changes  as  a  result  of  the  votes  in 
the  Reichstag.  Thus,  there  was  abolished  all  absolutely  fixed 
penalties,  with  the  exception  of  the  two  cases  of  capital  punish- 
ment. In  those  cases  where  life  imprisonment  had  originally  been 
fixed  as  a  penalty,  the  judge  was  empowered  to  inflict  imprisonment 
for  a  period  limited  by  a  fixed  maximum.  The  penalties  in  a  num- 
ber of  cases  were  reduced.  The  reduction  of  sentence  for  extenu- 
ating circumstances  was  extended  to  a  greater  number  of  offenses. 
The  number  of  cases  in  which  a  prosecution  could  ensue  only  upon 
private  initiative  was  also  extended.  The  changes  dealing  with 
political  oft'enses  were  of  marked  importance.  In  this  last  respect 
mention  should  be  made  of  §§  11  and  12,  which  extended  to  mem- 
bers of  the  legislative  assemblies  of  the  separate  States  and  to 
their  proceedings  that  freedom  of  speech  and  immunity  from  pun- 
ishment for  true  assertions  which  had  been  sanctioned  by  the 
Constitution  of  the  Confederation  in  respect  to  the  Reichstag.     Men- 

^  I.e.,  attempts  against  the  life  of  the  sovereign,  against  the  life  of 
one's  own  prince,  or  the  prince  of  the  territory  where  the  act  is  com- 
mitted. 

357 


§  {)7\  MODERN  TIMES  [Part  I,  Title  V 

tion  should  also  he  made  of  the  supplement  to  §  113^  of  the  ( 'rimi- 
nal  Code,  wliieh  in  faet  should  he  rej^arded  as  a  guarantee  of  the 
freedom  of  the  citizens  of  the  States,  and  by  which  punishment 
for  resistance  to  the  acts  of  an  official  is  limited  to  cases  where  the 
official  is  acting  within  his  lawful  authority."* 

Criticism  of  the  Code.  —  The  "  Norddeutsche  Strafgesetz- 
buch "  was  not  a  far  reaching  code  in  the  matter  of  reforms.  Its 
essential  merit,  and  one  which  must  not  be  too  lightly  esteemed, 
consists  in  laying  the  foundation  for  uniformity  of  criminal  legis- 
lation in  the  region  included  within  the  Confederation.  More- 
over, it  must  be  admitted  that  for  a  majority  of  the  confederated 
States,  notably  e.g.  for  Prussia  and  Saxony,  it  entailed  a  very 
material  step  in  advance.  It  must  be  conceded  further  that  in 
all  of  the  confederated  States,  while  it  uniformly  gave  better  ex- 
pression to  the  prior  law,  in  many  important  respects  it  produced 
better  results  in  practice. 

That  the  Code  had  faults  and  defects  is  a  circumstance  which 
it  shares  with  every  other  statute.  Much  could  have  been  gi\en 
more  careful  deliberation,  and  after  such  deliberation  could  have 
been  improved.  But  apart  from  these  faults,  the  reproach  that 
the  Code  can  be  justly  criticized  for  being  too  mild,  or  that  juristic 
theory  is  responsible  for  its  shortcomings,  has  nothing  to  substan- 
tiate it,  —  a  charge  made  by  many  who  have  scanty  acquaintance 
with  the  Code  or  the  history  of  criminal  law.  There  was  not 
sufficient  time  for  the  jurists  to  make  a  thorough-going  and  compre- 
hensive criticism  of  the  draft  of  the  Code ;  and  mere  theorists,  in 
the  narrow  sense  of  the  word,  had  no  share  in  the  drafts.''  The 
criticism  from  outside,  moreover,^  was  very  limited  in  scope,  and 
no  time  was  given  for  careful  discussion  of  more  than  a  few  indi- 
vidual features. 

The  Code  of  the  North  Germaai  Confederation  as  the  Code  of 
the  Empire.  —  Even  before  the  Code  w^ent  into  effect  (January  1st,. 
1871)  as  that  of  the  North  German  Confederation,  the  treaty  con- 
cluded in  1870  with  the  Grandduchies  of  Hesse  and  Baden  and  the 

3  Cf.  also  the  supplement  to  §  110  whereby  the  punishment  incidental 
to  summons  for  contempt  is  limited  to  the  case  where  the  order  is  legally 
valid  or  the  action  is  within  the  jurisdiction  of  the  official. 

^  For  the  history  of  its  origin,  cf.  the  brief  but  excellent  exposition  in 
Rüdorff,  "Commentar." 

^  As  to  the  course  of  events,  cf.  particularly  Von  Wächter,  "Beitrag  zur 
Geschichte  und  Kritik  der  Entwürfe  eines  Strafgesetzbuch  für  den  nord- 
deutschen Bund".  1870. 

^  For  list  of  works  and  articles  dealing  -n-ith  the  criticism  of  the  drafts, 
see  Von  Wächter,  p.  18;    Von  Holtzcndorff,  "Handbuch",  I,  pp.  131  et  seq, 

358 


Chapter  XV]  GERMANY  SINCE   1813  [§  68 

Kingdoms  of  Bavaria  and  Wiirtemherg  made  it  certain  that  it 
would  become  the  code  of  the  new  German  Confederation.  In 
Hesse  south  of  the  Main  the  Code  went  into  effect  on  January  1st, 

1871,  and  in  Bavaria,  Wiirtemberg,  and  Baden  it  was  to  go  into 
effect  on  January  1st,  1872.  In  the  meantime,  however,  as  a  re- 
sult of  the  North  German  statute  of  Ai)ril  Kith,  1871,  deahng  with 
the  constitution  of  the  German  Empire,  the  Code  was  prochiimed 
as  a  statute  of  the  Empire ;  at  the  same  time  it  was  provided  that 
the  laws  of  the  North  German  Confederation  then  enacted  or  yet 
to  be  enacted  should  prevail  as  the  law  of  the  P^mpire  in  territory 
that  was  added.  Thus  the  Code  obtained  as  the  law  of  the  Empire 
in  Hesse  south  of  the  Main  from  the  1st  day  of  January,  1871,  and 
in  Bavaria,  Wiirtemberg,  and  Baden  from  the  1st  day  of  January, 

1872,  and  in  Alsace-Lorraine  by  virtue  of  a  special  Statute  of 
August  30th,  1871,  from  October  1st,  1871.  The  substitution  of 
terms  appropriate  for  the  new  Empire  for  terms  appropriate  for  the 
North  German  Confederation  seemed  to  render  it  imperative  to 
prepare  a  new  edition  of  the  Code.  The  changes  incident  to  this 
revision  were  effected  for  the  Code  (but  not  for  its  enacting  law)  '' 
by  the  Statute  of  May  15th,  1871,  dealing  with  the  revision  of  the 
Criminal  Code  of  the  North  German  Confederation  as  the  Crimi- 
nal Code  of  the  German  Empire. 

§  68.  The  Criminal  Law  Amendment  Act  of  1876.  —  A  defect 
of  the  Code,  which  in  some  of  its  aspects  has  l)een  previously  criti- 
cized and  wdiich  even  at  the  present  time  often  leads  to  decisions 
contrary  to  the  sense  of  justice,  lay  in  the  treatment  of  extenuating 
circumstances,  for  whicli  the  only  criterion  is  the  attitude  of  the 
individual  judge.  Another  obvious  defect  was  in  the  status  which 
the  charge  at  times  might  assume,  the  rule  of  the  so-called  "  An- 
tragsdelicte  "  {i.e.  offenses  whose  prosecution  is  based  only  upon 
private  initiative).  The  unfortunate  features  of  the  last-men- 
tioned principle  and  the  urgent  need  of  their  remedy  soon  became 
apparent  both  to  the  courts  and  the  public.  On  the  one  hand, 
the  requirement  that  a  complaint  be  lodged  by  the  injured  person 
was  extended  to  too  large  a  number  of  offenses.  On  the  other  hand, 
the  right  to  withdraw  the  criminal  complaint  and  thereby  effect 

^  A  new  revision  of  the  enacting  law  was  not  considered  necessary. 
Here  the  prof(!ssion  relied  upon  §  2,  Ahs.  2  of  tli(>  Statute  of  Ai)ril  16th, 
1871:  "The  .  .  .  laws  referred  to  are  laws  of  the  Empire.  Where  in 
the  same  there  is  mention  of  the  Nortli  (Jerman  (^)nfe(leration,  its  con- 
stitution, territory,  members,  or  states,  ritrhts  of  natives,  institutions  of 
government,  otTicers,  officials,  flag,  etc.,  the  same  shall  be  construed  as  the 
German  Empire  and  its  corresponding  attributes." 

359 


§  G8]  MODERN  TIMES  [Pakt  I,  Title  V 

a  "  nolle  prosequi  "  at  the  arbitrary  discretion  of  the  party  in- 
jured (or  his  legal  representative,  as  the  case  might  he),  had  been 
given  too  wide  a  range  in  criminal  procedure  (extending  even  to  the 
time  of  the  final  judgment  or  sentence).^ 

The  bill  for  a  statute  amending  the  Criminal  Code  {i.e.  "  Straf- 
gesetznovelle ")  which  the  Bundesrath,  in  November,  1875,^  sub- 
mitted to  the  Reichstag,  went  far  beyond  the  elimination  of  this 
defect.  A  case  arising  in  Belgium,''  involving  a  frequently  uttered 
threat  against  the  life  of  Prince  Bismarck,"*  led  to  the  proposal 
that  an  ineffectual  incitement  to  crime  in  its  widest  sense  should 
be  subjected  to  punishment.  A  special  penal  provision  was  also 
proposed  in  order  to  ensure  the  obedience  and  fidelity  of  officials 
of  the  Foreign  Office.^  There  were  also  proposed  a  number  of  more 
subordinate  special  provisions,  in  part  suitable  to  their  purpose 
and  later  accepted  by  the  Reichstag.  In  addition  to  all  this  there 
was  proposed  a  complete  alteration  of  fundamental  provisions  of 
the  "  General  Portion  "  (punishment  of  offenses  committed  in 
foreign  countries,  punishment  of  the  so-called  "  completed  at- 
tempts ").  It  was  furthermore  sought  by  means  of  broader 
phrasings  and  severer  penalties  to  bring  about  a  stricter  sup- 
pression of  the  public  utterance  and  circulation  of  doctrines  that 
seemed  dangerous  politically.^ 

By  the  Criminal  Law  Amendment  Act  of  February  26th,  1876, 
enacted  after  a  warm  debate,  a  part  only  of  these  proposals  were 
enacted.  The  so-called  "  ineffectual  incitement  to  crime  "  ' 
in  §  49a  (the  Duchesne  case)  was  made  liable  to  punishment  only 
under  certain  special  conditions,  and  §  353a  (the  Arnim  case) 
corresponded  to  the  original  proposal  in  part  only.  The  proposed 
changes  in  the  method  of  dealing  with  attempts,  and  in  the  funda- 
mentally different  treatment  of  offenses  committed  abroad,  were 

'  Cf.  the  official  "Motive  zur  Strafgesetznovelle  von  1876." 

2  This  was  less  than  four  years  after  the  Code  went  into  effect  as  the 
law  of  the  Empire  and  less  than  five  years  after  it  went  into  effect  in  the 
territories  of  the  North  German  Confederation  and  in  Hesse. 

3  Cf.  the  Belgian  Statute  of  July  9th,  1875. 
■•  The  ease  of  Duchesne. 

^  The  ease  of  Count  Harry  von  Arnim.  Concerning  this,  see  the 
opinions  given  by  von  Holtzendorff  (1S7.Ö),  "  Vertheidunfrsreden  in  der 
Untersuchungssache  wider  den  Grafen  Harry  v.  Arnim,  gehalten  von  den 
Rechtsanwälten  Dockhorn  und  IMunckel",  Berlin  (187.5). 

*  Another  unfortunate  proposal  of  the  draft  had  to  do  \\ith  the  intro- 
duction for  certain  eases  of  the  so-called  "Friedensbürgschaft"  {i.e.  bonds 
to  keep  the  peace).  Cf.  in  regard  to  this,  SchierUnger,  "Die  PViedens- 
biirgschaft".  pp.  76  et  seq. 

''I.e.  "erfolglose  Anstiftung." 

360 


Chapter  XV]  GERMANY  SINCE   1813  [§  68 

totally  rejected,  as  were  also  these  for  the  extension  of  certain 
political  offenses.  On  the  other  hand,  the  treatment  of  the  so- 
called  "  Antragsdelicte  "  was  subjected  to  a  radical  change.  In 
a  number  of  offenses  the  requirement  of  a  complaint  by  the  party 
injured  was  completely  eliminated  ;  and  the  rule  was  adopted  that 
a  complaint  once  lodged  could  not  be  withdrawn.  This  rule, 
however,  was  subject  to  numerous  exceptions  (so  as  \-irtually,  in 
some  cases,  to  amount  to  a  privilege  of  relationship  between  the 
injured  party  and  the  offender) ;  and  the  excessive  time  limit 
within  which  the  complaint  may  be  withflrawn  was  not  changed. 

Other  Criminal  Laws.  —  Previously,  by  virtue  of  the  statute 
of  December  10th,  1871,  and  as  a  result  of  the  controversy  with 
the  Church  of  Rome,  the  Code  had  received  an  additional  para- 
graph (§  130a)  which  was  directed  against  inflammatory 
speeches  by  the  Clergy.  The  Criminal  Law  Amendment  Act 
extended  this  §  130a  so  as  to  cover  written  utterances  of  the 
Clergy  in  the  exercise  of  their  vocation  or  in  connection  with  the 
exercise  of  their  vocation.  Code  §  287  had  already  been  supplanted 
by  §  14  of  the  Statute  of  November  30th,  1874,  for  the  protection 
of  trademarks  ;  and  §  337  had  been  supplanted  by  §  07  of  the  Stat- 
ute of  February  6th,  1875,  for  the  verification  of  legal  status  and 
marriage.  With  the  taking  effect  of  the  comprehensive  Imperial 
Justice  Act  (October  1st,  1879)  §§  281-283  of  the  Criminal  Code, 
dealing  with  criminal  bankruptcy,  were  supplanted  by  §§  209-214 
of  the  Insolvency  Regulations  of  February  10th,  1877. 

That  the  new  institutions  of  the  German  Empire  antl  the  needs 
of  business  rendered  necessary  a  considerable  number  of  special 
penal  provisions  in  the  nature  of  police  regulations  is  quite  ob- 
vious. It  is  also  apparent  that  laws  of  this  character  are  subject 
to  frequent  change.  Of  a  more  fundamental  and  permanent  sig- 
nificance (and  difficult,  moreover,  to  square  with  the  theory 
of  criminal  law)  are  the  statute  of  May  7th,  1874,  dealing  with  the 
Press,  the  statute  of  May  14th,  1879,  dealing  with  traffic  in  food 
supplies,  etc.,  and  the  statute  of  "Slay  24th,  1880,  dealing  with 
usury.  The  last-mentioned  law  gave  to  the  judge  (subject  however 
to  numerous  precautions)  a  very  extensive  discretion  in  respect 
to  the  determination  of  the  elements  of  the  offense.  And  this 
may  become  a  starting  point  for  further  indefinite  statutes  accord- 
ing to  the  judge  a  large  amount  of  discretion  in  respect  to  morals ; 
which  would  harmonize,  however,  with  a  socialistic  tendency  of 
the  State. 

361 


§  (j<)j  MODERN    TIMES  [Paut   I,   TiTLK    V 

§  (')0.  The  Draft  Code  of  1909.'  —  The  history  of  riorinaiiy's 
legislation  siiiee  1880  is  the  reflex  of  legal  seienee  in  Germany  and 
its  various  proposals  of  reform,  and  belongs  rather  in  the  field  of 
eonteniporary  legal  theory.  The  ehief  leader,  both  in  science  and 
in  proposals  for  Code  revision,  has  long  been  Franz  von  Liszt, 
professor  in  the  University  of  Berlin.-  Among  those  who  en- 
tered the  arena  to  support  or  to  opjjose  his  views  were  notably 
Birkmeyer/  Van  Calker,"*  Seuifert,''  Wach,^  Köhler,^  Sichart, ^ 
Mayer.^  By  1902  the  movement  had  so  far  advanced  that  a  so- 
called  "  Scientific  Commission  "  was  appointed  by  the  government 
to  prepare  a  draft ;  it  comprised  forty-nine  members,  representing 
every  shade  of  thought.  A  first  task  of  this  Commission  was  to 
prepare  and  publish  the  materials  for  a  comparative  study  of  the 
world's  criminal  law.  This  superb  undertaking,  the  "  Compara- 
tive Exposition  of  German  and  Foreign  Criminal  Law  "  ''^  is  a 
mine  of  information  on  the  criminal  laws  of  all  countries. 

Li  November,  1909,  appeared  the  Commission's  Preliminary 
Draft,  with  commentary.^'  The  preface  to  the  Commission's 
commentary  pointed  out  that  this  preliminary  draft  had  no  official 
status  as  a  government  measure,  and  was  not  to  be  laid  before 
Parliament.  It  was  meant  as  a  basis  for  constructive  criticism 
from  all  quarters. 

From  the  time  of  its  appearance,  the  Preliminary  Draft  has  been 

^  [This  section  was  prepared  by  the  Editor,  from  material  furnished 
by  Dr.  L.  von  Thot.  The  original  §  69  of  Von  Bar's  text  is  in  part  omitted 
and  in  part  transferred  to  §  63,  ante.  —  Ed.] 

-  Some  of  his  proposals  are  set  forth  in  the  following  places :  "XXVI 
Deutschen  Juristentag,  Verhandlungen "  and  "  Festschrift  ",  Berlin, 
1902. 

'  "Münchener  Juristenverein,  Verhandlungen",  Munich,  1901. 

^  "Vergeltungsidee  und  Zweckgedanke",  Heidelberg,  1899. 

^  "Die  Bewegung  im  Straf  rechte  während  der  letzten  30  Jahre",  Dres- 
den, 1901. 

"  "Zukunft  des  deutschen  Strafrechts",  Leipzig,  1902. 

'  "Reformfragen  des  Strafreehts",  Munich,  1903. 

*  "Beitrag zur  Revision  des  Strafgesetzbuchs  für  das  Deutsehe  Reich." 

'  "Deutsehe  Juristen-Zeitung",  Vol.  VII. 

'""Vergleichende  Darstellung  des  Deutschen  und  ausländischen  Straf- 
rechts;  Vorarbeiten  zur  Deutschen  Straf rechtsreform",  edited  for  the 
Imperial  Department  of  Justice  by  Liszt,  Birkmeiier,  Calker,  Frank,  Hippel, 
Kahl,  Lilienthal,  and  Wach;   Berlin,  15  vols.,  1906-08. 

"  "Vorentwurf  zu  einem  Deutschen  Strafgesetzbuch,  bearbeitet  von 
der  hierzu  bestellten  Verständigen-Kommission",  Berlin,  J.  Guttentag, 
1909;  with  a  commentary,  "Begründung,  Allgemeiner  Theil"  (pp.  1- 
419)  and  "Besonderer  Theil"  (pp.  419-860). 

A  "counter-draft,"  proposed  by  jurists  not  satisfied  ^vith  the  official 
draft,  has  also  been  published:  " Gegenentwiirf  zum  Vorentwxirf  eines 
Deutschen  Strafgesetzbuchs  nebst  Begründung",  by  Kahl,  Liszt,  Lilien- 
thal, and  Goldschmidl  (Berlin,  1910). 

362 


Chapter  XV]  GERM.AJ^Y  SINCE   1813  [§  69 

the  central  object  of  criminalistic  discussion  in  Germany.^-  Its 
revision  has  been  entrusted  to  a  second  Commission,  with  Lucas  at 
the  head.  Representing  the  composite  result  of  extremely  oppo- 
site views,  it  has  not  entirely  satisfied  any  school  of  thought.  Un- 
doubtedly it  represents  an  advance,  and  a  radical  advance,  in 
many  respects.  Its  encouraging  feature  is  that  it  is  based  on  a 
comprehensive  attempt  to  embody  into  law  the  best  that  criminal 
science  can  propose ;  and  its  shortcomings  are  due  to  the  still  im- 
perfect agreement  among  criminal  scientists  as  to  the  best  practical 
methods  for  applying  a  body  of  scientific  principles  which  as  yet 
is  itself  in  a  state  of  conscious  growth. 

^  Out  of  the  library  of  literature  already  accumulated  may  be  noted  the 
following  critiques:  Aschrott  and  Liszt,  "Kritische  Besprechung  des 
Vorentwurfs  etc.",  1910;  Mayer,  in  "Deutsche  Juristenzeitung",  XIV, 
No.  21,  pp.  1281-1300;  Lucas,  in  "  Deutsche  Juristenzeitung",  XVI,  pp. 
721,  895,  1022,  1353,  1517,  XVII,  pp.  299,  423,  653,  825,  1152,  1369; 
Liliculhfil,  Liszt,  and  Calker,  in  "Zeitschrift  für  die  gesamte  Strafrechts- 
wissenschaft", XXX,  pp.  224-289 ;  Langer,  in  "Zeitschrift"  above  cited, 
XXXI,  2;  Gleispach,  in  "Oesterroichische  Zeitschrift  für  Strafreeht",  4, 
209;  MicÄae^is,  in  "Blätter  für  (!('i'äiiy;iiiskunde"  ;  K.  Meyer, ''T)ie  Pos- 
tulate der  Internationalen  Kriminalistischen  Vereinigung  und  die  Be- 
schlüsse zweier  Strafrechtskommission",  in  "Mitteilungen  der  I.  K.  V.", 
XXI,  p.  224  (1914). 


363 


Chapter  XVI 

OTHER  COUNTRIES  SINCE   1800 

Austria,  Netherlands  and  Belgium,  Scandinavia,  Switzerland 

A.  Austria  ^ 

§  69a.     Austrian  Legislation  since  1848. 

§  69a.  Austrian  Legislation  since  1848.  —  Von  Schmerling,  ]\Iin- 
ister  of  Justice  in  1851,  planned  for  a  new  criminal  code.  But 
his  plan  did  not  mature.  The  Criminal  Code  promulgated  ]\Iay 
27,  1852,  was  merely  a  revision  of  the  Code  of  1803.  The  system 
of  penalties  was  improved ;  but  the  Code  could  still  not  be 
termed  in  any  respect  a  mild  one.^  Like  most  of  the  other  newer 
Codes,  it  substituted  for  "  serious  police-misdemeanors "  the 
term  "  offense  "  ("  Vergehen  ") ;  so  that  the  triple  classification 
became:  Crimes  ("  Verbrechen  "),  offenses  ("  Vergehen '"),  mis- 
demeanors   ("  Uebertretungen  "). 

The  efforts  to  obtain  a  realh'  reformed  code  continued  mean- 
while ;  and  in  1861-63  a  draft  was  prepared  by  Hye  von  Glunek ;  ^ 
but  it  was  never  enacted.     In  November,  1867,  a  supplementary 

'  [This  section  —  except  the  first  paragraph,  which  is  from  §  63  of 
Von  Bar's  treatise  —  is  compiled  by  Dr.  L.  von  Thot  for  this  volume ; 
for  this  author,  see  the  Editorial  Preface.  —  Ed.] 

2  There  were  two  grades  of  imprisonment,  —  ordinary,  and  severe. 
The  former  signified  close  confinement,  without  chains ;  no  conversation 
with  a  \'isitor  except  in  the  presence  of  a  prison  officer.  The  latter  signified 
solitary  confinement,  with  iron  shackles ;  \asitors  allowed  only  on  ex- 
traordinary occasions,  and  relatives  never.  Special  features  for  increas- 
ing the  severity  of  treatment  were:  limited  food,  hard  bed,  dark  cell, 
flogging. 

[In  Silvio  Pellico's  "  Le  Mie  Prigioni"  will  be  found  a  realistic  account  of 
the  severe  kind  of  imprisonment,  as  practised  in  Austria  in  the  1820  s. 
—  Rd.]  _ 

^  A  liberal  leader,  one  of  Austria's  most  celebrated  criminalists,  then 
about  ^p  years  of  age  and  professor  in  the  University  ;  afterwards  Minister 
of  Justice,  member  of  the  House  of  Lords,  and  Justice  of  the  Imperial 
Supreme  Court. 

364 


Chapter  XVI]         OTHER  COUNTRIES  SINCE   1800  [§  69& 

law  amending  some  of  the  penalty  provisions  did  pass.  In  1868, 
another  draft  was  presented,  but  soon  withdrawn.  Glaser,  now 
Austria's  most  distinguished  criminalist,  was  Minister  of  Justice ;  ^ 
and  in  1874  he  offered  a  new  draft.  This  in  turn  failed.  And  so 
the  story  continued  through  the  century;  in  1881,  the  draft  of 
Dr.  Prazak's  Ministry,  and  in  1891,  that  of  Count  Schonborn's 
Ministry,  equally  failed  to  find  acceptance.  Thus  the  Code  of 
1803-1852  rounded  out  more  than  a  hundred  years  of  existence.^ 

B.  Netherlands  and  Belgium  ^ 

§  696.     Netherlands.  I    §  69c.     Belgium. 

§  {]9b.  Netherlands.  —  The  Revolution  saw  two  early  but 
fruitless  attempts  to  reform  and  codify  the  criminal  law  ;  the  work 
of  the  Commissions  both  of  1795  and  of  1798  did  not  obtain  legis- 
lative sanction.  A  new  Commission  —  Reuvens,  Elout,  and  Van 
Musschenbrouk  —  appointed  in  1807,  produced  a  draft  which 
was  enacted  and  went  into  force  February  1,  1809.  King  Louis 
Bonaparte's  ordinance  styled  it  a  "  masterpiece  of  humanity  "  ; 
its  system  was,  indeed,  relatively  mild ;  it  gave  wide  discretion  to 
the  judge  in  applying  penalties ;  and  it  emphasized  the  mitiga- 
tion of  sentences  for  good  behavior. 

But  this  Code  did  not  remain  long  in  operation.  One  of  the 
radical  changes  resulting  from  the  French  annexation  of  the  Neth- 
erlands was  that  by  ordinance  of  December  11,  1813,  the  French 
Code  went  into  effect  in  the  Netherlands,  —  although  "  pro- 
visionally "  only.  The  Code  was  published  in  French ;  there  was 
also  a  translation  in  Dutch,  but  this  was  not  an  exact  translation, 
and  a  royal  ordinance  provided  that  in  case  of  doubt  the  French 
text  should  be  the  guide.     Moreover,  the  reception  of  the  French 

^  Glaser  began  his  professional  career  in  1849,  with  an  essay  on  "Eng- 
lish-Scotch Criminal  Procedure."  He  became  a  professor  at  the  Uni- 
versity in  18.56,  and  a  member  of  ParHament,  and  took  a  zealous  and 
leading  part  for  the  reform  of  criminal  law  and  procedure.  His  writings 
on  the  subject  are  profuse. 

Mn  1912  a  new  draft  was  again  prepared:  "Regierungs-Entwurf 
eines  Oesterreichischen  Strafgesetzbuchs."  The  text  and  commentary 
are  officially  published  as  a  Supplement  to  the  Proceedings  of  the  House 
of  Peers,  in  1912,  No.  58,  black  letter  No.  90 ;  the  House  Commission's 
Report  on  the  bills,  in  1913,  as  Supplement  Nos.  58-63,  l>lack  letter  Xo. 
167.  The  text  and  commentary  have  also  been  pubUshed  by  Guttentag, 
BerUn,  as  Supplem(>nt  No.  29' to  Vol.  XX  of  the  "Mittheilungen  der 
Internationalen  Kriminalistischen  Vereinigung." 

'  [These  sections  were  pn>i>ared  by  Dr.  L.  von  Thot  ;  for  this  author, 
see  the  Editorial  Preface.  —  Ed.] 

365 


§  {yi)h]  MODERN   TIMES  [ParT   I,   TiTLE   V 

Criminal  Code  was  not  effected  without  some  changes.  Thus, 
the  i)enulties  of  general  confiscation  of  property,  police  oversight, 
compulsory  hard  labor,  and  death  upon  the  scaffold  were  abolished. 
The  death  penalty  was  inflicted  by  strangulation  or  by  the  sword. 

A  royal  ordinance  of  April  18,  1814,  again  appointed  a  com- 
mission to  prepare  a  reformed  legislation.  This  commission  was 
ready  on  January  17,  1815,  with  a  revision  of  the  Code,  and  its 
draft  was  again  revised  by  a  sub-committee,  Kemper  and  Phil- 
lipse  ;  but  it  failed  of  enactment.  In  1827,  the  government  again 
laid  a  revision  before  the  Senate,  this  draft  corresponded  in  its 
general  part  with  the  Criminal  Code  of  1809,  but  in  its  special  part 
(specific  crimes)  with  the  French  Code.  But  as  it  was  still  based 
upon  the  old-fashioned  deterrent  theory,  and  its  penalties  were 
exceedingly  severe,  the  government  was  obliged  to  withdraw  it. 

The  next  revision  was  not  proposed  until  October,  1839;  mean- 
while ensued  a  long  controversy  among  the  jurists  in  regard  to  the 
abolition  of  capital  punishment  and  the  system  of  punishments 
generally.  This  draft,  covering  the  first  or  general  part  of  the 
Code,  became  a  law  on  June  10,  1840.  Successive  drafts  of  the 
second  part  in  1842  and  1843,  in  1846,  in  1847,  and  in  1859,  failed 
of  enactment.  Nevertheless,  the  "  provisional  "  domination  of 
the  now  antiquated  French  Code  had  made  various  modifications 
indispensable ;  and  these  were  accomplished  by  the  statute  of 
June  29,  1864 ;  this  law  abolished  death  upon  the  scaffold  and 
marking  with  the  branding-iron,  extended  the  penalty  of  solitary 
confinement,  and  modified  the  provisions  as  to  recidivists,  and 
revised  the  definition  of  attempts  and  of  specific  crimes.  Later 
modifications  were  effected  by  the  statutes  of  April  10,  1869,  and 
July  14,  1871. 

A  royal  ordinance  of  September  28,  1870,  again  appointed  a 
commission  to  revise  the  Code ;  the  members  were  De  Wal,  L. 
Francois,  J.  Loke,  A.  De  Pinto,  M.  S.  Pols,  A.  J.  Modderman,  and 
Th.  Beelaerts  Van  Blokland.  The  commission  submitted  their 
draft  on  May  13,  1874;  but  it  was  not  enacted.  In  1878  (under 
Minister  of  Justice  Smidt)  and  again  in  1880  (under  Minister  of 
Justice  Moddermann)  new  drafts  were  submitted  to  Parliament ; 
this  last  draft  was  enacted  on  March  3,  1881,  to  go  into  effect 
on  Dec.  1,  1886;  and,  with  various  subsequent  amendments, 
remains  the  Code  in  force. 

This  Code,  the  fruit  of  independent  labor  of  Dutch  jurists, 
has  distinctively  a  national  character.     Its  notable  features  are 

366 


Chapter  XVI]         OTHER  COUNTRIES  SINCE   1800  [§  69«/ 

its  division  of  criminal  acts  into  two  parts ;  the  simplicitj'  of  its 
penal  system ;  the  abolition  of  humiliating  penalties ;  the  impor- 
tant part  played  by  solitary  confinement ;  the  careful  definition  of 
the  acts  liable  to  punishment  in  respect  to  their  subjective  ele- 
ments ;  and  the  abolition  of  special  rules  of  mitigation.- 

§  ü9c.  Belgiiun  became  a  separate  kingdom  in  1830-33.  The 
history  of  Belgian  criminal  legislation,  until  the  time  of  its  inde- 
pendence and  its  separation  from  the  Netherlands,  is  identical 
with  that  of  the  Netherlands.  After  that  date,  until  1867,  the 
French  Code  Penal  was  put  in  force  in  Belgium.  Preparations 
for  a  reform  of  the  Criminal  law  began  as  early  as  1834,  when 
a  commission  was  appointed  for  the  revision  of  the  Code  Penal. 
In  1848,  a  new  commission  was  appointed,  which  submitted  the 
result  of  their  labors  to  the  Parliament  in  1855,  and  this  became  a 
law  in  1867.  This  Code  is  in  substance  a  remodelling  of  the 
French  Criminal  Code.  With  various  amendments,  it  remains 
the  Code  in  force. 

C.  Scandinavia  ^ 

§  69d.     Denmark.  I  §  G9/.      Sweden. 

§  69e.     Norway.  |  §  69g.     Finland. 

§  ()9f/.  Denmark.  —  Danish  codification  of  criminal  law  in  the 
1800  s  was  at  first  only  partial  in  its  scope.  The  statute  of  October 
4,  1833,  punished  crimes  against  corporal  security  and  liberty. 
The  statute  of  April  11,  1840,  punished  theft,  fraud,  forgery,  etc. 
The  statutes  of  April  15,  1840,  and  March  26,  1841,  dealt  re- 
spectively with  perjury  and  arson.  In  the  year  1850,  a  commis- 
sion was  assigned  the  work  of  preparing  a  draft  of  a  complete 
criminal  Code.  This  draft  served  as  a  foundation  for  the  work 
of  a  new  commission  appointed  in  1859.  With  this  last  draft 
as  a  basis  was  prepared  the  criminal  Code  in  force  at  the  present 
time,  which  went  into  efi'ect  on  Feb.  10,  1866.     The  most  impor- 

-  Drafts  of  a  new  Criminal  Code  have  since  been  prepared,  but  without 
enactment,  by  the  Ministries  of  Cort  van  der  Linden,  in  1900  (pub. 
Belinfante,  entitled  "Herziening  van  het  Wetbock  van  Strafreeht"), 
and  of  Loeff,  in  1904  ("Ilandlingen  der  Staaten-General",  1904-05,  Band 
80).  The  subsequent  ministries  of  Xelissen  and  Regout.  in  1911  and  1912. 
have  abandoned  the  plan  of  a  complete  revision,  and  have  sought  to  re- 
vise the  Code  piecemeal,  by  separate  bills  from  time  to  time. 

'  [These  sections  were  prepared  by  Dr.  L.  vox  Thot  (for  this  author, 
see  the  Editorial  Preface) ;  except  §  (39f/,  on  Finland,  which  was  prepared 
by  the  translator,  Mr.  Walgrcn,  from  Professor  Forsmann's  treatise, 
cited  in  the  Editorial  Preface.  —  Ed.] 

367 


§  09e]  MODERN  TIMES  [Pakt  I,  Title  V 

tiint  later  modifying  statutes  are:  the  statute  of  May  11,  1897, 
dealing  with  the  punishment  of  acts  of  violence  committed  against 
iiniocent  persons,  and  the  statute  of  April  1,  1894,  dealing  with 
explosives.' 

§  Q9e.  Norway.  —  In  Norway  the  first  movement  toward 
modern  criminal  codification  is  found  in  the  criminal  statute  of 
1814,  which  specified,  in  its  9()th  Article,  in  accordance  with  the 
act  of  the  French  Declaration  of  the  Rights  of  Man,  that  "  no  one 
should  be  convicted  or  punished  except  by  virtue  of  a  criminal 
statute."  This  notable  law  (Art.  9G)  further  prescribed  the  imme- 
diate preparation  of  a  criminal  code,  to  take  the  place  of  the 
antiquated  Code  of  the  King  Christian  V.  A  provisional  ordi- 
nance of  1815  abolished  the  barbarous  methods  of  i)unishment 
in  the  Code  of  Christian ;  and  State  Councilor  Chr.  Krogh  was 
intrusted  with  the  preparation  of  the  draft  for  a  new  code.  On 
his  death  in  1828,  a  new  commission  was  appointed  (under  J.  H. 
Vogt  as  president) ;  their  draft  and  commentary  appeared  in 
1832-1835.  The  Storthing  {i.e.  Parliament)  accepted  the  draft 
in  1839,  and  the  King  approved  the  statute  on  August  20,  1842. 

This  first  systematic  codification  of  Norway's  criminal  law  was 
based  upon  the  revised  Hanoverian  Code,  although  influenced  by 
the  French  Code  Penal. 

In  January,  1885,  a  general  revision  was  once  more  undertaken ; 
the  State  Council,  with  Bernhard  Getz  at  its  head,  was  commis- 
sioned to  prepare  a  draft.  This  draft,  first,  published  in  1887,^ 
became  a  law  and  went  into  effect  on  January  1,  1905.  Its  dis- 
tinguished author  unfortunately  did  not  live  to  see  the  fruition 
of  his  labors;  he  died  in  1901.  The  new  Code  was  a  notable 
embodiment  in  legislation  of  the  most  advanced  ideas  of  reform. 
It  contains  no  death  penalty,  nor  short  periods  of  imprisonment, 
and  it  provides  for  indeterminate  sentences  of  dangerous  oft'enders 
likely  to  relapse  into  crime. 

§  69/.  Sweden.  —  In  1809,  Parliament  appointed  a  commis- 
sion, under  the  presidency  of  Professor  Holmhernsson,  to  prepare 

1  Parliament  now  has  before  it  a  draft  of  a  new  Criminal  Code. 

^  "Udkast  til  almindelig  borgerlig  Straff elov  for  Kongeriget  Norge, 
med  Motiver",  Kristiania,  1896:  "Udkast  til  Lov  om  Faengselvaesenet 
om  Forbrydelse  of  Frihedsstraffe,  med  Motiver",  Kristiania,  1896. 
The  former  was  translated  by  Rosenfeld  and  Urbye  in  1902,  as  Supple- 
ment No.  20  to  the  "Mittheihmgen  der  Internationalen  Kriminalistischen 
Vereinigung"  (Gutentag,  Berlin). 

Numerous  critiques  of  this  advanced  Code  have  appeared  in  the 
journals  of  criminal  law. 

368 


Chapter  XVI]         OTHER  COUNTRIES  SINCE   1800  [§  Q9g 

a  system  of  complete  codificatiün,  both  priv^ate  and  criminal.  The 
majority  of  the  commission  concluded  that  an  entirely  new  draft 
of  the  criminal  code  should  be  worked  out,  on  the  foundation  of 
science  and  of  foreign  legislation  ;  in  consequence  of  this,  Professor 
Rabenius  (to  whom  the  criminal  code  had  been  assigned),  and 
also  certain  of  his  colleagues,  quit  the  commission.  Of  the  remain- 
ing members,  StaafF,  Richert,  and  Afzelius  prepared  the  draft 
of  1815,  and  laid  it  before  Parliament.  The  commission  busied 
itself,  for  the  next  ten  years,  exclusively  with  the  codification  of 
private  law,  and  did  not  return  to  the  preparation  of  the  criminal 
code  until  182G.  At  that  time  the  commission  was  working  in 
cooperation  with  the  Norwegian  commission.  The  revision  of 
the  criminal  code  was  ready  in  1832,  and  was  based  upon  the 
Bavarian,  Hanoverian,  and  Austrian  codes,  and  their  respective 
revisions.  After  considerable  criticism  by  numerous  jurists 
(Boethius,  Rabenius,  Grubbe,  Attcrbom,  Holmbergsson,  Ceder- 
schiold),  a  new  commission  published  in  1839  a  revised  draft. 
In  the  year  1844  the  commission  (now  enlarged  by  adding  Schlyter, 
Bergfalk  and  Richert)  published  its  draft  and  commentary.  This 
revision  took  the  advanced  step  of  recognizing  only  one  kind  of 
punishment,  namely,  simple  imprisonment  in  seven  grades,  and 
was  not  accepted  by  Parliament. 

For  twenty  years  more,  reform  took  the  shape  of  special  separate 
statutes,  —  abolition  of  the  death  penalty ;  abolition  of  whip- 
ping and  church  penance  (for  theft,  pilfering  and  robbery)  ;  pun- 
ishment of  forgery  and  fraud ;  punishment  of  murder,  man- 
slaughter, and  personal  injuries;  method  of  solitary  confinement. 
In  1862  the  government  presented  a  new  draft  code,  which  was 
accepted  with  few  changes  and  went  into  effect  on  February  16, 
1864.1 

§  69<7.  Finland.  —  After  the  union  of  Finland  with  Russia, 
in  1809,  penal  legislation  there  was  at  a  standstill  for  fifty  years. 
The  subject  was  resumed  in  1863,  and  a  bill  was  introduced  in 
the  "  Stands  "  or  Estates,  declaring  the  principles  on  which  a 
new  Code  should  be  prepared ;  the  desire  being  to  obtain  their 
assent  to  the  dominant  principles  before  proceeding  with  the  great 
task.  Inasmuch  as  the  Code  of  1734  contained  penal  provisions 
in  conflict  with  the  spirit  of  the  age,  and  did  not  prescribe  suffi- 
ciently severe  punishment  for  many  offenses,  partial  reforms 
were  made  in  the  interim.  A  provisional  code  was  also  prepared, 
1  A  new  draft  criminal  code  is  again  before  Parliament. 
369 


§  G9/i]  MODERN   TIMES  [Pakt   I,   Titlk   V 

to  operate  until  the  new  Code  slunild  l)e  completed ;  but  it  failcfl 
to  receive  the  sanction  of  the  g(jvernment,  because  it  abolished 
capital  punishment.  Another  provisional  law  was  thereupon 
enacted  in  1S07,  but  its  promulgation  was  postponed  because  of 
the  defective  conditions  of  the  prisons,  and  by  the  time  this  had 
been  remedied,  the  new  Code  was  almost  ready  for  enactment 
and  hence  the  law  of  1867  was  never  put  in  force. 

A  committee  had  been  appointed  in  1865  to  draft  a  code  in 
accord  wutli  the  principles  ratified  by  the  Estates  in  the  Assembly 
of  1863.  This  draft  was  introduced  in  1875,  w^as  subjected  to  the 
criticisms  of  judges  and  jurists,  and  was  then  recommitted  to 
another  commission  in  1881.  After  various  vicissitudes,  this 
draft  became  a  law  and  was  finally  promulgated  on  April  14, 
1894. 

D.  Switzerland  ^ 

§  69h.     First  Period  :   to  1830.  1  §  69^.      Third  Period :    since  1848. 

§  69i.      Second  Period  :  1830  to  1848.  | 

§  69/i.  First  Period :  To  1830.  —  With  the  new  epoch  in  Swit- 
zerland came  great  legislative  activity.  Numerous  codes  and 
drafts  of  codes  were  produced,  in  one  Canton  after  another.  But 
on  the  whole  they  exhibited  in  their  tenor  a  cautious  conserva- 
tism. The  legislators  realized  that  neither  the  French  Code  of 
1810  nor  Feuerbach's  Bavarian  Code  of  1813,  would  be  exactly 
suited  in  their  original  form  to  the  genius  and  traditions  of  the 
Swiss  people. 

In  the  first  place,  Switzerland  had  never  possessed  a  single 
common  law  of  crimes ;  nor  had  it  a  professionally  educated  judi- 
ciary capable  of  administering  a  new  and  borrowed  code.  In  the 
second  place,  the  philosophic  construction,  the  abstract  prin- 
ciples and  generalizations,  of  the  new-style  Codes  were  alien  to 
the  traditions  of  Swiss  legislation,  —  concreteness  and  simplicity. 
And  in  the  third  place,  the  rigorous,  unbending,  and  elaborate 
precision  of  penalties  in  these  new  scientific  Codes,  and  their 
plenteous  use  of  the  prison-penalty,  were  two  features  that  barred 
their  direct  adoption  in  Switzerland,  where  there  were  not  many 
prisons,  and  the  judge's  liberal  discretion  in  penalties  was  a  car- 

^  [These  three  sections  are  by  the  Editor ;  their  authority  is  the  treatise 
of  Dr.  L.  Pfenninger  ;  for  this  wTiter  and  work,  see  the  Editorial  Pref- 
ace. —  Ed.] 

370 


Chapter  XVI]         OTHER  COUNTRIES  SINCE   1800  [§  69/i 

dinal  tradition  of  criminal  justice. — And,  indeed,  in  the  earliest 
of  the  Swiss  Codes  now  framed  could  be  seen  emerging  these  same 
traditional  traits  of  its  people,  —  a  repudiation  of  philosophic  and 
doctrinal  formalism ;  a  refusal  to  attempt  to  solve  all  cases  in 
the  Code  without  leaving  wide  discretion  to  the  judge;  and  an 
avoidance  of  elaborate  definition  and  systematization. 

The  first  but  short-lived  eftort  for  a  national  code  was  the 
Criminal  Code  of  the  Helvetian  Republic  (May  4,  1799),  founded 
on  the  French  Code  of  1791.  But  in  1803  the  Helvetian  Republic 
came  to  an  end ;  each  Canton  became  once  more  independent  in 
its  legislation,  and  only  five  preserved  the  Helvetian  Code.  Never- 
theless its  influence  had  been  important  and  useful.  Its  provi- 
sions represented  a  fusion  of  German  and  French  ideas,  and  were 
much  better  adapted  to  Swiss  needs  than  either  the  French  or  the 
German  Code  itself. 

In  the  other  Cantons,  the  materials  serving  as  authorities  in 
criminal  law  were  now  varied  enough, — ^the  old  customary  law  ;  the 
old  statutes ;  the  Carolina ;  Feuerbach's  treatise ;  the  Helvetian 
Code;  and  the  French  and  the  German  Codes  of  1810  and  1813. 
Gradually  this  complex  of  authorities  was  superseded  by  codi- 
fication. Between  1805  and  1830  five  more  Cantons  adopted 
Codes  (in  St.  Gall,  indeed,  twice  over,  1807  and  1819).  During 
the  same  period  and  until  1838,  in  Germany,  only  one  Code  — 
Feuerbach's,  for  Bavaria  —  was  enacted ;  though  numerous 
drafts  were  worked  upon. 

This  long  interval  of  legislative  uncertainty  and  inactivity  was 
due  partly  to  political  conditions,  partly  to  the  tedious  methods 
of  preparation.  In  Hanover  twenty-five  years  elapsed  between 
the  resolution  calling  for  a  code  and  the  final  Act  of  its  adoption. 
The  struggle  between  governmental  absolutism  and  popular 
demands  made  it  almost  impossible  to  construct  a  criminal  code 
which  would  satisfy  both  ministry  and  representative  assembly. 
In  Switzerland,  the  methods  of  legislation  were  not  thus  hampered, 
and  the  result  was  a  large  progress  towards  needed  clarification  of 
the  law. 

It  is  frequent  to  speak  of  the  Swiss  Codes  of  this  period  as  mere 
imitations  of  either  the  French  or  the  Austrian  or  the  Bavarian 
Code.  But  they  should  rather  be  regarded  as  the  natural  product 
of  the  indigenous  law,  revised  to  suit  the  times.  In  one  important 
feature  they  notably  showed  their  native  trait,  by  avoiding  the 
faults  which  Mittermaier  never  ceased  to  criticize  in  the  German 

371 


§  69;]  MODERN   TIMES  [Paut   I,   TiTLE   V 

codes ;  namely,  over-generalization,  ovcr-systematization,  and 
the  ])assion  for  fixing  into  law  the  logical  consequences  of  abstract 
l)rinciples  in  all  their  details,  regardless  of  j)ractical  needs  or  his- 
toric traditions. 

§  GO/'.  Second  Period :  1830  1848.  —  In  this  period  ten  Can- 
tons adopted  criminal  codes.  Most  of  them  were  enacted  before 
1838,  when  the  long-delayed  legislation  came  to  pass  in  the  Ger- 
man States  (seven  codes  wnthin  a  few  years).  The  July  Revolu- 
tion of  1830  at  Paris  had  found  a  quick  response  in  Switzerland  ; 
within  six  years  of  that  European  event  sixteen  Cantons  had 
adopted  new  constitutions.  The  new  spirit  showed  itself,  how- 
ever, most  notably  in  the  field  of  procedure  rather  than  of  sub- 
stantive law ;  for  Mittermaier  and  his  school  of  jurists  were  now 
emphasizing  measures  of  reform  of  criminal  procedure  throughout 
Europe. 

Basel's  Code  w^as  based  on  its  own  earlier  one ;  it  was  the  sim- 
plest and  clearest  of  all ;  giving  wide  discretion  to  the  judge,  it 
still  preserved  its  local  tradition  of  severity.  Zurich's  Code  was 
its  first,  and  followed  German  models,  but  was  marked  by  lenity 
of  rule  and  by  simplicity  and  brevity  of  expression.  Vaud's 
Code  combined  German  and  French  features,  while  avoiding 
the  severity  of  the  former ;  it  was  mildest  of  all  in  its  spirit,  and 
broadest  in  the  discretion  given  to  the  judge.  Luzern  followed 
German  models,  but  without  accepting  their  severity.  Thurgau 
kept  closest  of  all  to  the  German  type. 

Common  characteristics  of  all  the  Swiss  Codes,  in  relative  con- 
trast to  the  other  European  legislation,  were  simplicity,  lenity, 
and  judicial  discretion.  The  topics  of  criminal  intent,  negligence, 
attempt,  accomplices,  conspiracy,  etc.,  notably  exhibit  this. 
Oftenses  against  public  law  were  not  so  emphasized  as  in  the  Ger- 
man codes.  Treason  received  the  death  penalty  in  Zürich  and 
Thurgau  only ;  the  whole  subject  was  a  minor  one  in  the  Swiss 
legislation,  Avhile  in  Germany  it  received  elaborate  attention. 

§  697.  Third  Period :  since  1848.  —  From  1848  to  1870  there 
were  sixteen  codes  (new  or  revised)  enacted  in  the  Swiss  Cantons ; 
and  since  that  time  a  dozen  more.  Some  still  looked  to  France 
as  a  model ;  some  looked  to  Germany ;  a  few  sought  indepen- 
dently to  adapt  their  own  traditions  to  their  own  needs. 

As  in  other  countries,  the  political  events  of  Europe  in  1848 
showed  their  influence  here.  Political  offenses  were  handed 
over  in  part  to  the  Federal  Government  in  1853.     Another  no- 

372 


Chapter  XVI]        OTHER  COUNTRIES  SINCE    1800  [§  69j 

table  feature  was  the  abandonment  of  minimum  penalties,  as  well 
of  numerous  petty  distinctions  fixed  in  the  text  of  the  law,  i.e. 
by  enlargement  of  the  judicial  discretion.  Freiburg  stands  out 
as  one  of  the  most  progressive  Cantons ;  it  was  the  first  to  abolish 
the  death  penalty  and  imprisonment  in  chains.  In  the  Swiss 
Codes,  as  in  the  German  ones  of  the  same  period,  is  seen  a  more 
or  less  groping  uncertainty  iii  the  use  of  penalties.  Imprisonment 
with  hard  labor  was  applied  with  the  greatest  diversity  of  terms, 
varying  from  a  few  months  to  a  life-time ;  ordinary  imprison- 
ment was  used  with  equal  variety ;  imprisonment  in  chains  was 
abolished  in  all  but  three  codes ;  the  death  penalty  was  retained 
in  all  but  three ;  flogging  found  a  place  in  almost  all  of  the  codes, 
— ■  though  after  ISOo  it  was  never  used  ;  honor-penalties  —  loss 
of  all  civic  rights,  or  of  specific  ones  —  were  widely  employed. 
The  doctrines  of  intent,  attempt,  accomplices,  and  the  like,  show 
(as  in  the  earlier  codes)  a  marked  simplicity  and  liberality  in 
contrast  with  the  German  legislation.  The  traditional  duty  of 
the  citizen  to  give  information  of  a  known  crime,  i.e.  the  crime  of 
failing  to  do  so  or  failing  to  hinder  the  offender  —  an  offense 
universally  preserved  in  the  German  legislation,  and  punished 
e.g.  in  Saxony's  Code  by  four  years'  imprisonment  —  was  almost 
ignored  in  the  Swiss  codes. 

Political  crimes  showed  the  most  notable  contrast.  A  totally 
different  spirit  from  that  of  Germany  was  visible  in  the  Swiss 
pages.  In  the  first  place,  the  death-penalty  for  treason,  freely 
used  in  the  four  great  German  codes,  was  abandoned  in  all  those 
of  Switzerland,  and  in  many  of  them  not  even  a  minimum  penalty 
was  prescribed  by  law.  Again,  the  kinds  of  acts  defined  as  polit- 
ical offenses  were  relatively  few ;  the  very  chapters  on  this  sub- 
ject were  (in  the  phrase  of  a  German  jurist)  "  idyllic  in  their 
simplicity  " ;  their  brief  provisions  took  no  more  than  from  four 
to  twenty-four  sections,  while  the  German  chapters  extended  into 
sixty  and  seventy  sections.  The  contrast  was  visible  in  the  elabo- 
rate definitions  of  the  various  criminal  acts  of  assistance,  connivance, 
and  preparation,  by  which  the  German  legislators  sought  to  draw 
into  the  shadow  of  political  crime  all  possible  conduct.  The 
truth  was  (as  Mittermaier  pointed  out),  the  German  Govern- 
ments lived  under  the  obsession  that  political  unrest  was  to  be 
ascribed  to  the  mildness  of  the  deterrent  criminal  law ;  and  thus, 
in  spite  of  the  jurists'  protests,  the  spirit  of  official  terrorism  gained 
ground  more  and  more.    The  most  innocent  and  well-disposed 

373 


§  G9j]  MODERN  TIMES  [Paht  I,  Title  V 

citizen  might  now  come  into  the  grasp  of  the  law  for  acts  and  utter- 
ances which  a  suspicious  government  and  a  facile  judiciary  chose 
to  interpret  as  offenses  under  the  new  definitions.  As  late  as 
1866,  Professor  Holtzendorff's  "  Journal  of  Criminal  Law  " 
reported  the  case  of  Zachariae,  an  eminent  professor,  who  came  in 
danger  of  criminal  proceedings  for  contempt,  because  of  a  critical 
comment  on  a  Supreme  Court  decision.  —  In  this  field  the  Swiss 
Codes  showed  a  thoroughly  different  attitude. 

And,  lastly,  the  traditional  simplicity  of  the  Swiss  legislation 
is  again  in  this  period  notable,  in  contrast  with  the  German  elabo- 
rate particularity.  The  length  alone  of  the  codes  suffices  to  show  ; 
for  the  four  chief  German  Codes  ranged  between  three  hundred  and 
fifty  and  five  hundred  and  thirty  sections,  while  the  Swiss  Codes 
ranged  between  one  hundred  and  fifteen  and  two  hundred  and 
ninety  sections,  except  for  three  which  reached  three  hundred 
and  fifty. 

Meanwhile,  unification  of  law  w^as  becoming  a  principal  problem. 
The  German  political  unification  of  1870,  and  the  consequent 
movement  there  towards  unification  and  centralization  of  law, 
gave  an  impetus  to  a  similar  movement  in  Switzerland,  as  well  as 
a  tendency  to  imitate  the  German  imperial  legislation  in  cantonal 
law.  Ten  new  or  revised  cantonal  codes  were  enacted  between 
1870  and  1889.  A  general  feature  was  the  elaboration  of  the 
definitions  of  offenses  and  the  lenity  of  the  penalties.  The  Fed- 
eral Constitution  of  1874  abolished  the  death-penalty  and  flog- 
ging; and  though  the  Amendment  of  1879  restored  liberty  of 
cantonal  action,  only  a  few  Cantons  took  advantage  of  it,  and 
capital  punishment  has  never  since  been  inflicted.  Imprison- 
ment and  fines  became  the  principal  penalties.  Reformation  as 
the  avowed  objective  led  to  many  changes  in  the  method  of  apply- 
ing penalties.  In  form,  the  newer  Codes  (in  spite  of  German 
influence)  preserved  the  traditional  Swiss  traits  of  simplicity, 
concreteness,  and  avoidance  of  theorizing. 

The  tendency  towards  unification  gradually  matured.  Since 
the  early  intercantonal  treaty  of  1291  (w^hich  concerned  murder, 
arson,  robbery,  and  wrongful  distress)  there  had  been  no  efforts 
of  the  kind  until  the  short-lived  Helvetic  Criminal  Code  of  1797. 
Then  the  question  slumbered  again,  while  the  new  ideas  were 
being  assimilated  in  cantonal  experiments,  until  1865.  In  that 
year  a  notorious  case  of  the  flogging  penalty  moved  national 
feeling  to  shame.     From  then  onw^ards  the  subject  was  steadily 

374 


Chapter  XVI]        OTHER  COUNTRIES  SINCE   1800  [§  69i 

before  the  public.  The  draft  Constitution  of  1S72  contained  an 
Article  granting  to  the  Federal  Government  legislative  power  over 
criminal  law  and  procedure ;  but  this  Constitution  was  rejected 
at  the  polls,  and  the  new  draft,  accepted  by  the  people  in  1S74, 
lacked  that  Article.  In  1887,  the  Swiss  National  Bar  Associa- 
tion declared  in  favor  of  exclusive  Federal  jurisdiction  and  uni- 
fication. The  Federal  Council  authorized  the  preparation  of  an 
exhaustive  report  on  the  cantonal  criminal  law ;  this  report,  by 
Carl  Stooss,  professor  at  Bern,  took  the  form  of  his  well-known 
treatise  on  Swiss  Criminal  Law.^  In  1888,  with  other  leaders, 
he  founded  the  "  Swiss  Journal  of  Criminal  Law  ",  which  has 
since  been  the  useful  organ  for  the  historical  and  critical  discus- 
sion of  the  subject.  Since  that  time,  three  drafts  have  been  pre- 
pared by  Professor  Stooss ;  but  thus  far,  none  has  had  the  fortune 
to  be  enacted.^ 

^  "  Grundzüge  des  schweizerischen  Strafrechts  "  (2  vols.,  1892-93). 

*  "  Schweizerisches  Strafgesetzbuch,  Protolcoll  der  zweiten  E.xperten- 
kommission"  (Luzern,  Vols.  1^,  1912-13)  ;  "Vorentwurf  zu  einem  Schweiz- 
erischen Strafgesetzbuch  nach  den  Beschlüssen  der  Expertenkommission '' 
(Berlin,  J.  Guttentag,  1908,  Beilage  zu  M.  I.  K.  V.). 


375 


PART   II 

HISTORY    OF    THE    THEORIES    OF 
CRIMINAL   LAW 

CHAPTER   I.  ANCIEKT  GREECE  AXD  ROME. 

CHAPTER  II.  THE  MIDDLE  AGES. 

CHAPTER  III.  FROM  GROTIUS  TO  ROUSSEAU. 

CHAPTER  IV.  FROM  BECCARIA  TO  FEUERBACH. 

CHAPTER  V.  FROM  BENTHAM  TO  HERBART. 

CHAPTER  VI.  GERMANY  FROM  HEGEL  TO  BINDING. 


377 


Chapter  I 
ANCIENT  GREECE  AND  ROME 


§  70.  Practical  Importance  of 
Theories  of  Criminal  Law. 

§  71.  The  Beginnings  of  Specula- 
tion.    The  Sophists. 

§  72.     Socrates.     Plato. 


§  73.     Aristotle. 

§  74.  Influence  of  Aristotle.  The 
Stoics.  The  Epicureans. 
Scepticism.  Roman 

Philosophy.     Hierocles. 


§  70.  Practical  Importance  of  Theories  of  Criminal  Law.  — 
Indubitably  from  time  immemorial,  the  criminal  law  has  been 
found  an  absolute  necessity  for  the  public  order  and  for  human 
society  in  general.-     Among  the  multitude  of  questions  concerning 

^  Concerning  the  matter  contained  in  this  Part  the  following  writers 
may  be  consulted:  Henke,  "Handbuch  des  Criminalrechts  und  der 
Criminalpolitik",  I  (1823),  pp.  52-129;  Bauer,  "Die  Warnungstheorie 
nebst  einer  Darstellung  und  Beurtheilung  sämmtlieher  Strafreclits- 
theorien"  (1830);  Hepp,  *"Ucber  die  Gerechtigkeits-  und  Nutzungs- 
theorien des  Auslandes  und  den  Werth  einer  Philosophie  des  Strafrechts" 
(1834)  ;  Hepp,*  "Darstellung  und  Beurtheilung  der  deutschen  Strafrechts- 
systeme", 2d  Part  (2d  ed.  1843,  1844);  .4.  Freytag,  "Die  Concessional- 
gerechtigkeitstlieorie  des  Strafrechts,  nebst  einer  kurzen  Darstellung 
und  Beurtheilung  der  übrigen  neueren  Theorien  des  Strafrechts"  (184G)  ; 
KösÜin,  "Neue  Revision  der  Grundbegriffe  des  Criminalrechts"  (1845), 
pp.  764-850;  A.  Franck,  "Philosophie  du  droit  penal",  (1864);  Räder, 
"Die  herrschenden  Grundlehren  von  Verbrechen  und  Strafen  in  ihren 
inneren  Widersprüchen"  (1867);  Heime,*  in  Von  Hollzendorff's  "Hand- 
buch des  deutschen  Strafrechts",  I  (1871),  pp.  239-344;  Lni.stncr, 
*"Das  Recht  in  der  Strafe"  (1872)  ;  Wharton,  "Philosophy  of  Criminal 
Law"  in  the  eighth  edition  of  his  "Criminal  Law  of  the  United  States" 
(Philadelphia),  pp.  1-29.  —  Tlu^  works  marked  with  an  asterisk  [*] 
contain  the  most  complete  presentation  of  the  subject  as  a  whole.  Hepp 
pays  the  most  attention  to  the  jurists  and  Laistner  deals  more  with  the 
philosophers.  Cf.  also  P.  Janet,  "Histoire  de  la  philosophic  morale  et 
politique"  (2  vols.,  Paris,  1868). 

-  The  theories  of  criminal  law  are  usually  classified  as  "Absolute" 
and  "Relative."  By  the  former  it  is  maintained  that  punishment  is 
something  inherent  iii  the  very  nature  of  the  crime,  —  a  necessary  conse- 
quence of  the  crime.  The  latter  seek  to  justify  punishment  by  showing 
that  it  has  an  effect  which  is  in  harmony  with  some  purpose  whose  attain- 
ment is,  on  other  grounds,  desirable.  Since  this  purpose  can  be  found 
only  in  the  conditions  imposed  by  the  social  life  of  human  beings,  these 
relative  theories  regard  punishment  as  coming  into  existence  only  with 
the  State  which  governs  these  conditions.  The  absolute  theories,  how- 
ever, regard  punishment  as  possible  without  the  State,  and  as  ha\ing 

379 


§  70]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW      [Part   II 

the  riglit  to  inflict  punishment,  there  is  one  which  constantly 
arises  :  How  is  it  possible  that  the  public  power  enforcing  morality 
(and  as  such  must  criminal  law  after  all  be  regarded)  may  require 
an  injury  of  the  wrongdoer,  while  in  private  morals,  rules  such  as : 
"  Love  your  enemies  ",  "  Do  good  to  them  which  hate  you  ", 
"  Pray  for  them  which  despitefully  use  you  "  find  (not  always 
practically,  but  at  least  theoretically)  absolute  acceptance  ?  P^ven 
the  purely  practical  individual,  who  is  not  affected  by  doubts  of 
this  character,  will  at  times  be  confronted  with  the  question 
whether  the  State,  when  it  punishes  one  act  and  not  another,  or 
remodels  its  legislation  in  accordance  with  this  or  that  tendency, 
is  pursuing  the  proper  course.  He  will  have  occasion  to  consider 
whether  the  axe  and  guillotine  should  be  regarded  as  relics  of 
former  barbarism  and  persistent  error,  or  as  exemplifications  of 
the  supreme  and  ultimate  law  of  human  or  even  divine  justice. 

Now  these  questions  are  of  immediate  practical  importance, 
at  least  for  the  legislator,  and  their  determination  will  also  be 
indirectly  reflected  in  the  practice  of  the  courts.     For  example, 

been  adopted  by  the  State  for  the  sake  of  accomplishing  certain  purposes. 
The  so-called  "mixed"  theories  ("Coalitionstheorien")  seek  to  reconcile 
the  various  theories  of  criminal  law,  and  especially  the  absolute  and  the 
relative  theories  of  the  foundation  of  punishment.  A  reconciliation  of 
the  kind  last  mentioned  is  conceivable  in  various  ways.  Thus,  for  ex- 
ample, one  may  give  punishment  an  absolute  foundation  but  modify  or 
limit  its  exercise  in  accordance  with  purposes  of  expediency  in  attaining 
certain  results.  It  may  also  be  undertaken  to  prove  that  the  absolute 
foundation  of  criminal  law  is  not  prohibitive  of  a  regard  for  attaining" 
certain  purposes  {i.e.  beneficial  purposes),  but  rather  that  it  contemplates 
such.  Those  classifications  are  of  a  more  superficial  character  which 
make  a  distinction  between  theories  of  right  and  theories  of  utility  (in- 
terest), according  as  the  theories  taken  up  assume  a  special  legal  right  oa 
the  part  of  the  punishing  State  {e.g.  acceptance  of  a  contractual  sub- 
mission of  the  crime  to  punishment,  outlawry  of  the  criminal  as  a  result 
of  the  crime),  or  are  simply  satisfied  with  reasons  of  utility  or  the  empirical 
indispensability  of  things.  The  same  can  be  said  of  the  "Contractual" 
theories  ("Vertragstheorien"),  the  "Compensation"  theories  ("Vergüt- 
ungstheorien"), and  the  "Restitution"  theories  ("Erstattungstheorien") 
which  found  punishment  upon  a  requisite  restoration  or  removal  of  the 
social  injury  caused  by  the  crime,  etc.  Heinze  (p.  243)  would  insert  aa 
intermediate  class  between  the  division  of  theories  into  "Absolute"  and 
"Relative",  i.e.  those  absolute  theories  which,  without  regarding  punish- 
ment as  of  absolute  necessity,  yet  find  the  legal  justification  of  punishment 
solely  in  the  crime  that  has  been-committed,  and  which  treat  punishment 
as  an  absolute  right  and  not  as  an  absolute  duty  of  the  State,  and  also  as 
a  privilege  of  which  use  may  possibly  not  be  made.  However,  it  is  diffi- 
cult to  definitely  fix  the  limits  of  this  intermediate  division,  and  Laistner 
(p.  180)  has  therefore  declared  himself  opposed  to  it.  More  detailed 
and  minutely  classified  survej^s  may  be  found  in  Bauer,  "Abhandlungen 
aus  dem  Strafrechte  und  Straf processe",  I  (1840),  pp.  28  et  seq.;  Hepp, 
I,  pp.  xiv  et  seq.  They  have  the  fault  however  of  presenting  the  theories 
only  in  part  or  strained  to  suit  their  methods  of  classification. 

380 


Chapter  I]  ANCIENT   GREECE   AND    ROME  [§  71 

the  courts  will  have  occasion  to  consider  whether  or  not  at  cer- 
tain times  they  have  the  right,  although  keeping  within  the  stat- 
utory limitations  upon  punishment,  to  make  a  public  example  of 
some  individual.  Questions  arise  such  as  :  1.  What  acts  are  to 
be  punished  by  the  State?  2.  What  methods  of  punishment  shall 
the  State  employ?  3.  What  are  the  considerations  which  should 
influence  the  State  in  varying  the  degree  of  punishment?  Apart 
from  adherence  to  habit  and  a  blind  following  of  tradition,  these 
questions  are  not  to  be  answered  until  the  fundamental  prin- 
ciples underlying  criminal  law  itself  are  first  established.  For  it 
is  by  these  principles  that  the  scope  and  form  of  criminal  law  are 
to  be  determined. 

§71.  The  Beginnings  of  Speculation. — Just  as  to-day  the 
purely  practical  instinct  of  many  individuals  finds  nothing  objec- 
tionable in  the  numerous  and  (to  say  the  least)  but  thinly  veiled 
inconsistencies  of  the  criminal  law,  so  was  it,  at  the  beginning  of 
the  historical  development  of  criminal  law,  with  those  who  first 
contemplated  the  nature  and  efl'ect  of  punishment.  Their  thought 
simply  reflected  {i.e.  gave  back  like  a  mirror)  the  efl'ect  of  punish- 
ment from  one  or  the  other  viewpoint  or  perhaps  a  \ariety  of 
viewpoints.  Retaliation  ^  tending  to  restore  the  universal  har- 
mony ;  purification  of  the  land  from  the  effects  of  the  evil  deed 
and  from  the  presence  of  the  offender ;  the  appeasing  of  the  wrath 
of  the  gods  ^  {i.e.  the  idea  of  divine  justice)  ;  reformation  of  the 
offender ;  and  deterrence  of  others,  —  all  these  appear  upon  the 
screen  in  variegated  succession.  The  early  peoples  seem  all 
unconscious  of  the  warring  consequences  of  such  contradictory 
principles. 

The  Sophists.  —  As  a  matter  of  fact,  the  first  thoroughgoing 
investigation  deserving  the  name  of  scientific  attempt  began 
with  the  Sophists.  Protagoras  ^  definitely  abandons  the  idea  of 
retaliation.  "  He  who  desires  to  inflict  punishment  in  a  rational 
manner,"  says  he,  according  to  Plato,'*  "  chastises  not  on  account 
of  the  wrong  that  has  been  committed  —  for  that  which  is  done 

1  The  Pythagoreans  advanced  as  the  principle  of  criminal  law,  tln' 
*^avTLiriirovdU  re  kuI  iaou  ."  CJ.  Laislncr,  p.  8:  "Leidet  er,  was  er  ffethiin. 
so  ist  es  der  geradeste  Rechtsweg",  "t6  'PaSaßävdvos  ölKaLov."  Ari.<lollc. 
"  Eth.  Nieom.",  V,  5,  3.      Cf.  Her  mann,  p.  0. 

■^  Cf.  tlie  passages  from  the  Greek  authors  in  C.  F.  Hermann,  "Uelx- 
Grundsätze  und  Anwendung  des  Strafrechts  im  griechischen  Alterthumc". 
1855,  pp.  10,  27,  28. 

'  Taught  about  480  b.c. 

^  Cf.  Plato's  "Protagoras",  324, 

381 


§  72]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW       [Paht   II 

cannot  l)c  undone  —  but  rather,  liavin^jj  in  mind  the  future,  that 
neither  the  party  punished  shall  again  commit  a  crime  nor  he  who 
witnesses  the  punishment."  Improvement  of  the  criminal  and 
deterrence  of  others  are  the  ends  of  punishment.  The  justifi- 
cation, when  we  inflict  the  penalty  of  death  on  an  individual  who 
has  lost  the  sense  of  right  or  wrong,  is  the  same  as  if  he  were  a 
disease  (diseased  limb)  of  the  State  ("  wVo?  TroXeco? ").  In 
every  infliction  of  punishment,  one  has  to  consider  only  whether 
or  not  the  offender  can  be  improved.  Law  and  order,  howe\er, 
for  whose  maintenance  the  State  is  a  means,  must  be  preserxed, 
since  without  them  human  society  is  impossible.  To  be  sure,  a 
superficial  connection  is  still  maintained  with  the  old  religious 
beliefs  of  the  people ;  in  so  far  as  the  sense  of  right  and  wrong  is 
acknowledged  as  an  instinct  given  by  Zeus,  and  the  law,  in  accord- 
ance with  which  the  unhealthy  member  of  the  State  is  condemned 
to  death,  is  regarded  as  ordained  by  Zeus.  These  connecting 
threads  were  severed  by  the  later  Sophists.  As  a  result  of  the 
fundamental  maxim  of  the  Sophists :  "  The  measure  of  all  things 
is  man  "  ^  (and  not  man  with  a  nature  assumed  to  be  unchange- 
able, but  rather  man  with  his  changing  aspects  and  needs)  the 
laws  appear  as  artificial  rules  of  convenience  and  calculated,  as 
Kritias  maintained,  to  protect  the  weak  against  the  strong  and 
opulent.  While  the  criminal  law  was  allowed  to  receive  such 
additional  effectiveness  as  it  might  from  the  belief  in  all-powerful 
and  omniscient  deities,  so  that  secret  as  well  as  known  offenses 
would  be  prevented,  yet  (as  in  modern  times  by  Feuerbach)  the 
emphasis  was  laid  upon  the  threat  of  punishment  rather  than  its 
fulfilment. 

§  72.  Socrates.  —  The  philosophy  of  Socrates  had  this  in 
common  with  the  Sophists,  viz.,  that  both  founded  ethics  upon 
utility.  Socrates,  however,  had  a  predilection  for  the  principle 
that  ultimately  the  virtuous  man  attains  the  greatest  benefit  from 
his  virtue  itself.  But  in  doubtful  cases  he  sought  to  ascertain 
what  course  of  action  was  productive  of  the  greatest  possible  degree 
of  benefit.  INIoreover,  this  reference  to  the  acquisition  of  benefit 
served  merely  as  an  "  a  posteriori  "  demonstration  of  an  assumed 
divine  regulation  of  things. 

Plato.  —  In  Plato's  philosophy  this  ideal  of  a  divine  regulation 
of  things  is  definitely  assumed  as  actual  and  existing,  and  the 
empirical  manifestation  of  individual  objects  is  regarded  as  its 
*  C/.  Zeller,  "Geschichte  der  griechischen  Philosophie",  I,  p.  921. 

382 


Chapter  I]  ANCIENT   GREECE   AND   ROME  [§  72 

imperfect  reflection.  This  ideal  of  a  divine  regulation  thus 
becomes  of  prime  importance.  To  this  divine  regulation,  there 
were  forthwith  attributed,  as  some  of  its  individual  features, 
those  institutions  which  by  philosophy  were  customarily  regarded 
as  necessary  and  by  the  world  at  large  as  sacred.  Such  was  the 
case  with  the  institution  of  punishment.  It  was  contemplated 
as  being,  in  an  ideal  and  perfect  manner,  in  unison  with  the  divine 
regulation  of  things.  In  this  conception  it  was  not  something 
which  disturbed  the  harmony  of  the  universe,  but  rather  some- 
thing by  which  this  harmony,  which  had  been  disturbed  by  the 
crime,  was  restored,  i.e.  internally  for  the  criminal  himself,  as 
well  as  externally.  The  criminal,  in  undergoing  the  punishment, 
renders  to  the  order  of  the  universe  that  which  is  called  the 
"  8lkt)  "  [i.e.  the  just,  customary,  proper,  or  due)  and  at  the 
same  time  receives  it  himself.^  lie  receives  a  benefit,  since  jus- 
tice itself  is  something  of  a  benefit.  He  is  restored  to  a  right 
condition.  Thus  the  judge  is  likened  to  the  physician,  to  whose 
knives  and  cauterizing  irons  one  submits  and  endures  the  pain. 
The  criminal  who  fears  punishment  is  likened  to  the  foolish  boy 
w^ho  out  of  fear  of  the  knives  and  irons  would  remain  ill. 

As  a  matter  of  fact  Plato  does  not  enter  into  a  discussion  of 
those  individual  details  which  are  so  important  in  practical  life. 
He  goes  no  farther  than  to  show  the  divine  background  of  things, 
or,  speaking  more  correctly,  to  paint  it  with  artistic  lights.  He 
meets  the  argument  drawn  from  actual  life,  in  the  case  of  a  cruel 
execution,  with  the  brief  words  :  "  You  paint  a  terrifying  picture, 
but  you  refute  nothing."  ^  The  questions  concerning  the  death 
penalty  are  never  carefully  discussed.  Capital  punishment  is 
merely  mentioned  incidentally  along  with  the  other  punishments. 
It  is  taken  up  in  such  a  way  as  to  lead  one  to  infer  that  the  philos- 
opher felt  that  it  also  had  to  do  with  the  restoration  of  the  uni- 
versal harmony  of  things,  that  it  could  be  deserved,  and  that  it 
was  a  great  evil  if  anyone,  especially  great  wrongdoers  such  as 
kings  and  tyrants,  escaped  the  pimishment  deserved  in  this  life, 
i.e.,  avoided  the  restoration  of  harmony  in  this  life. 

As  a  matter  of  fact  (as  Laistner,  difl^'ering  from  others,  very 
correctly  infers),  this  is  an  absolute  foundation  for  punishment,  — 
derived  from  that  universal  harmony  of  things  which  with  irre- 
sistible power  renders  itself  complete  in  this  or  the  future  life. 
The  foundation  of  punishment  is  not,  though  this  in  certain  pas- 
'  "Gorgias",  472e.  2  "Gorgias",  473c.     il/wHer,  I,  p.  431. 

383 


§  72]  lIIöTüRY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Pakt  II 

.sa^cs  appears  to  be  of  prime  importance,  its  curing  and  f)eneficial 
efi'ect  uiK)n  the  individual.  It  is  even  conceived  as  possible  that 
the  individual  may  be  permanently  sacrificed  for  the  sake  of  this 
harmony.  While  the  effect  of  punishment  in  reaching  out  to  and 
deterring  others  is  not  ignored,  yet  this  deterrence  is  not  a  prin- 
ciple from  which  a  human  legislator  may  derive  conclusions.  It 
is  merely  an  incident  of  punishment,  and  while  it  may,  in  accord- 
ance with  the  laws  of  harmony,  come  about  spontaneously,  it  is 
not  an  object  for  human  calculation.^ 

Plato's  "  Politics  "  and  "  Republic  "  take  us  from  the  realm  of 
the  general  harmony  of  the  universe  into  that  of  the  harmony  of 
the  State.  As  against  this  latter  no  more  than  the  former  is  the 
individual  ascribed  an  independent  position.  If  he  disturbs  this 
harmony  of  the  State,  he  can  be  eliminated  and  destroyed,  and 
the  State  may  be  purified  by  the  death  or  banishment  of  those  who 
do  not  conform  to  its  requirements.  While  upon  the  whole  the 
idea  of  paternalism  prevails,  yet  the  individual  can  make  no  com- 
plaint ;  for  suffering,  as  such,  even  if  it  is  not  deserved,  is  regarded 
as  having  in  it  for  every  one  something  of  a  curative  nature. 
Here  again  there  is  certainly  reference  to  a  transcendental  divine 
background  which  should  be  a  solace  to  the  individual  in  case  he 
falls  a  victim  to  the  State.  In  the  uncertain  outlines  in  which 
punishment  here  appears  as  an  extreme  and  artificial  agency  not 
used  in  the  ideal  State,^  the  philosopher  loses  sight  of  that  con- 
tradiction which  upon  a  more  careful  treatment  is  bound  to  appear 
between  the  employment  of  punishment  for  mere  purposes  of 
expediency  (and  often  such  as  are  merely  temporary)  and  the 
idea  of  harmony,  as  well  as  the  idea  of  retaliation  which  shim- 
mers through  from  the  background. 

In  the  "Laws"  this  concession,  made  by  Plato  in  his  old  age  to 
the  imperfect  visible  world,  recedes  into  the  background,  and  the 
viewpoints  of  security  and  deterrence  assume  importance.  The 
"  I^aws  "  take  human  imperfection  as  a  basis  for  calculation.  With 
deep  insight  Plato  realized  that  that  form  of  legislation  is  best  which, 
through  the  punishment,^  also  tends  to  arouse  in  the  criminal 

'  "Gorgias",  525a,  b.  *  "Republic",  III,  4056. 

^  In  addition  there  are  other  means  mentioned  (e.g.  by  giving  of 
privileges).  "Whether  the  end  is  to  be  attained  by  word  or  action, 
with  pleasure  or  pain,  by  giving  or  taking  awaj'  of  privileges,  by  means 
of  penalties  or  gifts,  or  in  whatsoever  way  the  law  shall  make  a  man  hate 
injustice  and  love  or  not  hate  the  nature  of  the  just,  this  is  the  noblest 
work  of  law"  ("Laws",  IX,  862).  [Jowett's  rendering  substituted  for 
German  rendering.  —  Transl.] 

384 


Chapter  I]  ANCIENT   GREECE   AND   ROME  [§  72 

himself  inclinations  in  harmony  with  the  law.  Consequently 
the  effect  of  imprisonment  in  a  reformatory  ("  crcü(f)povi(TTt]piov")^ 
is  first  tried  upon  those  who  cherish  and  disseminate  principles 
destructive  of  belief  in  the  gods.  But  if  other  punishments  prove 
to  be  of  no  avail,  the  "  Laws  ",  in  pursuance  of  the  purposes  of 
security  and  deterrence,  justify  the  infliction  of  the  death  penalty. 
They  make  the  comment  (which  later  was  frequently  repeated 
by  others)  that  it  is  better  for  the  incorrigible  himself  to  die  than 
to  live.^  This  practical  attitude  of  the  State,  which  may  not 
arrogate  to  administer  divine  justice,  explains  his  abandonment  of 
the  principle  of  retaliation.  It  constantly  recurred  in  the  ideal 
State  of  the  "  Republic  ",  and  in  the  "  world  harmony  "  of  the 
"  Gorgias  "  it  made  the  punishment  appear  as  a  good  deed, 
whereby  the  effect  of  the  wrong,  reversing  itself,  falls  upon  the 
wrong  itself  ^  and  its  author.  But  it  is  expressly  rej)udiated  in 
the  "  Laws."  ^  The  practical  State  has  no  right  to  retaliation,  but 
merely  the  right  to  strive  to  attain  rational  results  in  the  future. 
That  which  is  done  cannot  be  undone. 

Thus  Plato's  philosophy  of  criminal  law  ends  in  obvious  con- 
tradictions. While,  in  the  earlier  works,  the  reader  believes 
that  an  absolute  foundation  must  be  found  for  punishment,  yet 
the  dialogue  of  the  "  Laws  "  leaves  no  doubt  that  this  attitude 
has  been  abandoned.  And  yet  this  contradiction  is  more  apparent 
than  real.  The  State,  contemplated  in  the  "  Laws  ",  is  merely 
the  State  contemplated  by  the  modern  jurist,  and  one  in  which  a 
well-considered  law  should  erect  a  barrier  against  wrong  and  suf- 
fering. The  State  of  the  "  Republic  "  was  an  ideal  one  having 
no  practical  existence.  Here,  not  as  in  a  real  State,  Plato  might 
maintain  a  kind  of  retaliatory  justice  in  the  place  of  the  divine 
justice,  and,  in  the  universal  "  world  harmony  ",  regard  every 
punishment  as  either  a  benefit  or  a  retaliation. 

The   dualism,    upon    which    Plato's    philosophy    is    ultimately 

6  Cf.  p.  909. 

^  "Laws",  IX,  862.  "But  if  the  legislator  sees  any  one  who  is  incur- 
able, for  him  he  will  make  a  law  and  fix  a  penalty.  He  knows  quite  well 
that  to  such  men  themselves  there  is  no  profit  in  the  continuance  of  their 
lives,  and  that  they  would  do  a  double  good  to  the  rest  of  mankind  if 
they  would  take  their  departure,  inasmucli  as  they  would  be  an  example 
to  other  men  not  to  otTend,  and  they  would  relieve  the  city  of  bad  citizens." 
[Jowett.] 

*  The  passage  in  the  "Laws",  V,  72.S,  which  designates  association 
with  the  wicked  as  the  greatest  of  penalties  does  not,  as  Laistner  (p.  27) 
has  it,  refer  to  punishment  inllicted  by  the  State. 

^  "Laws",  IX,  934:    "  ov  yap  rdyeyovoi  dydv.iTov  tarai  ttot^." 

385 


§73]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW      [Paht   II 

based,  is  also  manifest  in  his  conception  of  punishment.  It  is 
often  (liffieult  to  ascertain  whether  the  discussion  has  to  do  with 
real  and  existing  conditions,  or  whether  it  has  as  its  basis  an  ideal 
that  is  never  to  be  attained.  Plato  ofi'ered  absolutely  no  solu- 
tion to  the  question  concerning  relation  of  the  ideal  and  the  actual. 
Consequently  a  reconciliation  by  him  of  the  relative  and  absolute 
foundations  of  punishment  is  not  to  be  expected. 

§  73.  Aristotle.  —  Aristotle's  theory  of  criminal  law  is  unique  ; 
it  stands  quite  by  itself  in  ancient  times.  All  other  ancient 
philosophy  vouchsafed  no  independent  rights  to  the  individual  as 
against  the  State,  and  rather,  when  necessary,  allowed  the  indi- 
vidual to  be  absolutely  sacrificed  to  the  harmony  of  the  whole 
without  further  thought  or  justification.  But  Aristotle  regarded 
criminal  law  not  only  from  the  viewpoint  of  the  State  inflicting 
the  punishment,  but  also  from  the  viewpoint  of  the  criminal  who 
has  to  suffer  the  punishment.  He  does  not  arbitrarily  adopt  the 
position  (of  which  Plato  availed  himself  in  his  discussion  of  ideals) 
that  punishment  is  a  benefit  to  the  criminal. 

Aristotle  makes  a  distinction  between  justification  in  punishing 
and  obligation  to  punish.  He  bases  the  former  upon  a  contract 
entered  into  by  the  offender.  The  offender  has  encroached  too 
far,  since  justice  consists  in  no  one  having  too  much  and  no  one 
having  too  little.  The  offender,  by  the  commission  of  the  crime, 
makes  an  involuntary  contract  whereby  his  undue  proportion 
shall  be  reduced  by  the  judge.^  This  undue  proportion,  however, 
which  he  has  taken,  does  not  consist  in  the  advantage  which  he 
has  obtained,  but  rather  in  the  encroachment  which  he  has  made 
upon  justice ;  and  so  the  punishment  must  often  be  greater  than 
the  (external)  injury  caused  by  the  crime.  Accordingly,  Aristotle 
derives  punishment  not  from  a  justice  equalizing  matters  in  accord- 
ance with  a  geometric  proportion,  but  rather  from  a  justice  equaliz- 
ing matters  in  accordance  with  an  arithmetic  proportion.  In 
other  words,  criminal  justice  is  merely  a  lateral  branch  of  civil 
justice  and  has  to  do  with  the  reparation  of  injury.  But  as  the 
example  used  by  Aristotle  —  an  insult  to  a  magistrate  ^  —  shows, 
it  is  an  ideal  injury  which  is  contemplated.  While  the  question, 
whence  the  State  receives  the  right  of  criminally  punishing,  is 
not  directly  answered  by  Aristotle,  yet  from  his  treatment  of 
suicide,  we  perceive  that  he  regarded  the  injury  suffered  by  the 

1  "Eth.  Xicom.",  V,  5  and  7. 

2  Ibid.,  5,  §  1. 

386 


Chapter   I]  ANCIENT   GREECE    AND    ROME  [§  74 

individual  as  also  suffered  by  the  State,  and  from  this  must 
have  been  inclined  to  derive  the  right  of  the  State  to  inflict 
punishment. 

The  relation  between  justification  in  punishing  and  obligation 
to  punish  is  not  clearly  marked  by  Aristotle.  When  he  considers 
punishment  from  the  latter  viewpoint,  it  has  for  him  an  entirely 
different  significance.  Here  in  Aristotle,  as  in  Plato,  punishment 
signifies  a  healing  of  the  offender.^  So  sharply  marked  is  this  mean- 
ing that,  in  his  opinion,  vengeance  is  regarded  as  the  best  method 
of  punishment,"*  because  of  the  special  satisfaction  of  the  party 
exercising  vengeance.  However,  this  idea  is  later  not  uniformly 
adhered  to.  It  becomes  associated  with  the  idea  of  deterrence. 
Punishment  counteracts  the  prevalent  desire  of  the  masses  for 
profit  at  the  expense  of  others,^  and  opposes  the  prospect  of  pleas- 
ure with  one  of  unhappiness  and  sorrow.^  It  is  not  clear  whether 
the  mere  deterrence  of  the  party  punished  is  contemplated,  — 
a  thing  reconcilable  with  the  idea  of  his  reformation,  —  or  whether 
the  deterrence  of  others  is  meant  —  a  thing  which,  at  least  in  its 
intended  results,  is  not  reconcilable  with  the  idea  of  the  ott'ender's 
reformation.  The  banishment  of  incorrigibles  as  a  last  resort 
is  merely  advanced  as  a  viewpoint  favored  by  others,  and  Aristotle 
himself  does  not  express  an  opinion.^ 

§  74.  Influence  of  Aristotle.  —  Aristotle  had  certainly  obtained 
a  deeper  comprehension  of  the  problems  of  criminal  law  than  any 
of  the  other  philosophers  of  antiquity.  For  the  theory  of  responsi- 
bility, which  even  to-day  is  considered  meritorious,  we  are  indebted 
to  his  opinion  (found  in  the  Xicomachean  Ethics  ^)  that  the  right 
to  punish  is  derived  from  the  will  of  the  party  punished.  Tliis 
view,  however,  is  imperfectly  set  forth  in  the  theory  of  an  iinol- 
untary  contract.  In  this  respect,  Aristotle  attained  no  following 
in  ancient  times,  and  the  manner  in  which  he  sought  to  solve  the 
problem  strikes  us  as  being  artificial  and  unsatisfactory.  An  open 
mind  will  regard  punishment  (in  its  ordinary  sense)  and  reward 
as  correlative,  and  both  are  derived  from  a  (listrii)utive  justice,  and 
not  from  an  equalizing  justice  governing  the  field  of  private 
rights. 

An  important  factor  was  that,  with  Greece's  decline,  Grecian 
philosophy  gave  less  and  less  attention  to  the  regulation  of  the 

'  "Eth.  Nicom.",  II,  3,  §  1.  «  "Eth.  Xicom.",  X,  9.  §§  3,  8,  9. 

*  "Rhet.",  I,  10.  '  Ihi<l.,  9,  §  9. 

*  I.e.  "aij^7,<ns."  »  Ibid.,  V,  8. 

387 


§  74]  HISTOKY    OF   THE    THEORIES    OF    CRIMINAL    LAW      [Paut   II 

State,  and  found  the  prineiple  of  ethies  in  the  individual  and  Jiis 
self-sufficiency,  —  either  (as  with  the  Epicureans)  in  an  unbroken 
rest  and  cheerfulness  of  spirit,  or  (as  with  the  Stoics)  in  the  lonely 
and  ruü;f;ed  virtue  of  the  wise. 

The  Stoics.  —  To  the  Stoic  philosophy  punishment  and  criminal 
law  could  be  nothing  more  than  matters  of  secondary  importance, 
the  ascertainment  of  whose  basis  was  not  worth  the  necessary 
trouble.  The  wicked  were  simply  left  to  be  dealt  with  by  the 
world,  in  whatever  way  it  might  happen.  The  legislator,  in 
inflicting  punishment  (of  whatever  sort  he  pleased)  upon  the 
wicked,  did  them  no  injustice.  As  a  matter  of  fact  he  always 
treated  them  too  gently  and  never  "  irapa  rrjv  a^iav.''  Pity  for 
the  WTongdoer  is  only  weakness.  This  in  fact  was  based  upon 
the  idea  of  the  non-reality  of  all  evil,  i.e.,  the  fact  that  evil  merited 
destruction.  The  author  of  evil  was  directly  identified  with  evil 
itself,  insofar  as  the  evil  and  the  good  were  regarded  as  diametri- 
cally opposite.  The  pow^er  of  punishment  as  a  means  of  better 
training  (illustrated  by  Protagoras  by  the  gradual  bending  straight 
of  crooked  sticks)  was  discarded,  with  the  remark  that  between 
the  good  and  the  evil  there  is  no  middle  ground,  and  consequently 
no  transition  from  one  to  the  other.^ 

The  Epicureans.  —  While  the  Stoic  abandoned  crimes  and  pun- 
ishment to  the  course  of  events,  since  his  firm  and  positi\-e  attitude 
assumed  the  worthlessness  of  the  offender  Mithout  further  thought, 
the  Epicurean  relegated  the  entire  matter  of  the  regulation  of 
States  and  arrangement  of  laws  to  maxims  of  convenience  and 
expediency.  If  the  Epicurean  conceded  the  existence  of  guilt, 
it  was  not  so  much  the  crime  he  regarded  as  an  evil  but  rather 
the  being  punished  ^  and  the  fear  of  the  consequences  of  the  crime. 
Accordingly  it  was  self-evident  that  punishment  could  be  merely 
an  instrument  in  the  hands  of  the  lawgiver  for  the  discipline  or 
deterrence  or  perhaps  the  I'eformation  of  the  individual,  in  order 
to  make  him  serve  the  purposes  of  the  lawgiver.  According  to  this 
conception  there  is  no  need  of  a  basis  for  punishment  which  shall 
justify  it  from  the  viewpoint  of  the  party  punished.  To  undergo 
punishment  is  merely  a  species  of  misfortune.  And  the  most 
that  can  be  said  against  him  whose  actions  entail  punishment  is 

^  Cf.  the  collection  of  passages  from  the  writings  of  the  Stoics  in  Laistner, 
pp.  34  ct  seq. 

^    't6    yap    KXdipai   oiiOi  avrb    ö 'Ett^kodpos    airo4>a.lvei    KaKÖv,    iWä   to   ißTretriv", 

Epidetus,  "Diss.",  Ill,  7,  12.  Cf.  Hildenbrand,  "Geschichte  und  System 
der  Rechts-  und  Staatsphilosophie",  I  (1860),  p.  516. 

38S 


Chapter  I]  AXCIEXT   GREECE   AND    ROME  [§  74 

that  he,  in  his  attitude  and  inclinations,  did  not  happen  to  be  in 
harmony  with  the  law,  or  that  he  was  not  clever  enough  to  avoid 
the  evil  resulting  from  his  act. 

Scepticism.  —  The  Sceptic  philosophy  (the  school  of  Pyrrho) , 
while  it  renounces  all  explanation,  substitutes  authority  and  that 
which  exists  positively  for  the  conventional  ideals.  It  regarded 
theoretic  certainty  as  impossible,  but  since  there  must  be  some 
compass  by  which  to  guide  practical  existence,  it  acknowledged 
as  such  simply  tradition  and  that  which  exists, 

Roman  Philosophy.  —  The  Roman  philosophy,  while  it  did  not 
attain  to  a  system  of  its  ow^n,  rested  essentially  upon  the  founda- 
tion of  Stoicism.  But  (as  was  in  keeping  with  its  tendency  to 
Eclecticism  and  a  characteristically  practical  bent)  it  softened 
the  harsher  conclusions  of  Stoicism  through  broad  humanitarian 
ideas,  which  were  then  paving  the  way  for  Christianity.  Thus 
Cicero  ^  is  solicitous  that  punishment  shall  not  exceed  its  proper 
degree.  He  would  have  punishment  fall  upon  only  a  few,  but 
fear  hold  all  in  check.^  Seneca  ^  repeats  with  approval  the  words 
of  Plato  concerning  the  healing  power  of  punishment,  and  even 
with  rhetorical  pathos  justifies  capital  punishment  as  a  benefit 
which,  in  extreme  cases,  must  be  conferred  upon  the  criminal. 
AVliile,  by  the  Roman  jurists,  the  purposes  of  deterrence,  of  security 
against  the  individual  offender,  and  sometimes  also  of  retalia- 
tion with  no  ulterior  motives,  were  introduced  merely  for  the 
justification  of  individual  practical  observations  and  decisions, 
there  is  an  almost  Christian  sound  to  their  words.  According  to 
Epictetus,  the  wise  man  should  regard  even  the  greatest  criminal 
as  one  unfortunate  and  confused,  and  should  not  be  angry  with 

*  "De  Off.",  I,  25  (89). 

^  "Pro  Cluentio",  e.  46  (128) :  "Statuerunt  enim  majores  nostri  .  .  . 
ut  metus  videlicet  ad  omnes,  pcena  ad  paueos  perveniret."  Cf.  also 
"De  Off.",  1,  11  (33)  :  "Atque  baud  scio  an  satis  sit,  eum  qui  lacessierit, 
injuria?  sute  ptenitere,  ut  et  ipse  ne  quid  tale  posthac  (faciat),  et  ceteri 
sint  ad  injuriam  tardiores." 

6  "De  Clement.",  I,  21.  "De  Ira",  I,  5,  14-16;  II.  31.  Cf.  Ulpian 
in  L.  6  §  1  D.  "De  poenis",  48,  19:  ".  .  .  ut  e.xemplo  deterriti  minus 
delinquant."  L.  16  §10  (Saturninus) :  "Xonnumquam  evenit,  ut 
aUquorum  malefioiorum  supplieia  exaeerbentur,  quolies  nimium  multis 
personis  grassantibus  exemplo  opus  est."  L.  20,  D.  "De  pcxmis":  "Si 
poena  alicui  irrogatur,  receptum  est  comment ieio  jure,  ne  ad  heredes 
transeat.  Cujus  rei  ilia  ratio  videtur,  quod  pcx'na  constifuitur  in  emenda- 
tionem  hominum  qu:e  mortuo  eo,  in  quem  constitui  \idftur,  d(\>;init." 
Cf.  also,  L.  6  §  i.  f.  "De  custod.  reor.",  4S,  3 ;  L.  9  §  3  D.  "De  off.  proc", 
1,16;  L.  1  §  1  D  "De  .J.  et  J.";  L.  131  D.  "De  V.  S."  :  "...Poena  est 
noxae  vindicta."  Cf.  also,  e.g.  L.  5.5  C.  "De  episc",  1,  3;  Nov.  12,  c.  1. 
Heinze  in  Von  HoUzendnrff'x  "Handliuch",  I,  pp.  247,248.  and  especially 
Abegg,  "Die  verschiedeneu  Strafrechtstheorien",  pp.  78  et  seq. 

389 


§  74]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL   LAW       [Part   II 

him ;  furthermore,  he  enjoins  every  one  to  work  for  the  improve- 
ment of  others.  If  we  may  (h'aw  conchisions  from  other  utter- 
ances of  that  estimable  philosopher  and  pupil  of  P^pictetus,  Marcus 
Aurelius,  who  sat  upon  the  imperial  throne,  he  may  have  regarded 
the  cardinal  idea  of  punishment  as  merely  the  reformation  of  the 
individual,  since  he  considered  it  a  mandate  of  morals  "  to  love 
and  assist  those  who  have  fallen  and  who  do  wrong. 

Hierocles.  —  In  spite  of  numerous  artificial  expressions,  Stoicism 
really  devoted  to  the  province  of  ethics  only  a  superficial  atten- 
tion. There  was,  however,  in  ancient  times,  an  adherent  of  the 
Neoplatonic  philosophy,  wlio  had  a  deeper  comprehension  of 
the  problem  of  criminal  law  than  was  shown  in  these  last  out- 
croppings  of  Stoicism.  Neoplatonism  sought  to  bring  the  sub- 
jective tendency  of  Stoicism  into  alliance  with  the  objective  gen- 
eral ideas  of  the  universe  of  Plato ;  as  a  result,  it  reproduced  in 
part  Plato's  views  regarding  punishment.  Hierocles'  ^  explana- 
tion of  punishment  was  to  the  effect  that  the  law,  which  did  not 
want  evil  to  be  done,  maintained  itself  by  means  of  punishment. 
The  good  could  not  be  indifferent  to  a  breach  of  the  law^,  and  respect 
for  the  law  must  be  restored  in  the  oft'ender  himself.  In  accord- 
ance with  this  opinion,  punishment  was  aimed  at  the  act.  The 
person  of  the  offender  was  unimportant,  for,  as  observed  by  Hier- 
ocles, the  object  was  to  save  the  Deity  from  the  reproach  that  it 
was  inflicting  punishment  upon  the  individual,  and,  on  the  other 
hand,  to  preserve  the  idea  of  human  freedom,  without  resorting 
to  a  fictitious  contract  made  by  the  criminal  in  respect  to  his  own 
punishment.  But  how,  then,  does  the  punishment  come  to  attach 
itself  to  the  person  of  the  wrongdoer  and  impose  upon  him  an  evil  ? 
This,  said  Hierocles,  might  appear  to  human  notions  as  being  a 
merely  coincidental  result.  But,  in  truth,  the  oflfender  thus 
satisfies  the  conditions  of  the  law,  and  the  purpose  of  the  Deity 
can  be  nothing  other  than  to  improve  the  offender  through  suffer- 
ing, which  in  its  true  nature  is  not  suffering  but  something  which 
ultimately  shows  itself  as  a  good,  since  its  origin  is  in  God.  Hier- 
ocles, like  Plato,  believed  that  it  was  better  to  be  punished  than 
to  remain  unpunished,  and  that  the  offender,  by  having  undergone 
punishment,  attains  a  kind  of  restoration.  After  having  under- 
gone punishment  he  should  be  regarded  as  having  again  attained 
a  certain  average  of  worthiness  and  virtue. 

^  Cf.  Zeller,  III,  1,  p.  683. 

*  Concerning  Hierocles  cf.  especially  Laistner,  pp.  45  et  seq. 

390 


Chapter  I]  ANCIENT   GREECE   AND   ROME  [§  74 

Sijice  Hierocles  believed  that  the  only  purpose  that  could  be 
ascribed  to  the  Deity  was  that  of  reformation,  and  appears  to 
reject  those  ideas  of  retaliation  allied  with  the  prominence  given 
to  the  freedom  of  the  will  in  Xeoplatonism,  it  can  be  said  that  his 
theory  failed  to  demonstrate  the  justice  of  punishment  from  the 
human  viewpoint.  ^lankind,  since  it  must  live  and  act  in  accord- 
ance with  divine  will,  thus  has  the  right  to  repudiate  the  deed  as 
a  thing  not  to  be  condoned ;  but  (we  ask)  how  does  it  come  about 
that  it  can  lay  hands  on  its  author  f  The  appeal  here  made  by 
Hierocles  to  divine  law  ^  is  merely  a  confession  that  the  philosopher 
has  failed  to  find  the  truth  which  to  us  seems  so  evident.  There 
is  a  very  mystical  sound  (which  reminds  one  of  the  modern  "  Soi- 
rees de  St.  Petersbourg  "  of  Count  J.  de  Demaistre)  in  Hierocles' 
observation  that  the  peculiar  benefit  (the  ultimate  puri)ose)  of 
the  law  was  to  bring  together  the  criminal  and  the  judge  inflicting 
the  penalty.  As  Laistner  properly  points  out,  it  sounds  almost 
as  if  the  crime  were  a  thing  to  be  desired,  in  order  to  display  the 
majesty  of  the  law  in  offering  up  the  offender  as  a  victim.  In 
reality,  like  Plato,  he  avoids  the  entire  problem.  Since  the  philos- 
opher proceeds  upon  the  basis  that  punishment,  in  accordance 
with  its  very  nature,  cannot  be  an  evil,  and  it  is  only  the  wicked- 
ness within  the  individual  that  is  an  evil,  there  yet  remains  the 
problem  how  the  civil  community  can  be  justified  in  inflicting  an 
evil,  in  the  form  of  punishment,  upon  any  one.  In  other  words, 
it  amounts  to  nothing  other  than  the  fallacy  already  committed 
by  Plato,  —  a  confusing  of  an  absolute,  divine,  and  mystical  view- 
point with  that  human  viewpoint  which  is  the  only  one  of  which 
we  can  conceive  and  which  alone  is  practical. 

All  these  theoretical  dissertations  had  no  effect  in  ancient 
times  upon  the  practical  shaping  of  the  criminal  law.  The  most 
influence  it  could  have  had  was  when  a  philosopher  such  as  ]\Iarcus 
Aurelius  was  emperor  and  judge.  To  be  sure,  it  did  render  less 
harsh  a  number  of  criminal  sentences.  Yet  the  stress  and  the 
confusion  of  the  times  were  too  great  to  have  been  influenced  by 
mere  contemplative  study.  As  has  already  been  pointed  out  in 
Part  I  of  this  work  (the  history  of  criminal  law),  a  remarkable 
influence  was  exercised  by  Christianity.  It  still  remains  for  us 
to  ascertain  how  Christianity  theoretically  adjusted  itself  to 
criminal  law. 

'  'Swdyei  olv  6  vdfxos  ws  ((prjrai  toi>s  ire<f>VK6Tai  Kplveiv  Kal  toi)s  ir((pvK6Ta^  kukv- 
viddaL  8i     aix<poTipwv  rb  olKilov  direpyaj^onevos  dyaddv  .  .  ."      M  ullach,  p.  75. 

391 


Chapter  II 

THE   PHILOSOPHY   OF   CRIMINAL   LAW   IN   THE   MIDDLE 

AGES 


Attitude  of  the  Early  Chris- 
tians towards  the  Law. 
Changed  Position  of  Chris- 
tianity as  a  State  Religion. 


§  7G.  Views  of  Medieval  Philosophy 
as  Exemplified  by  Thomas 
Aquinas.  Lack  of  Interest 
of  the  Medieval  Philoso- 
phers in  Criminal  Law. 


§  75.  Attitude  of  the  Early  Christians  towards  the  Law.  —  In 
the  beginning,  the  Christians  were  merely  a  sect,  at  best  only 
tolerated  and  often  persecuted.  In  their  doctrine  such  institu- 
tions as  the  State  and  the  legal  system  found  no  part.  Christianity 
at  first  recognized  only  a  Christian  system  of  morality  and  knew 
nothing  of  a  Christian  system  of  lau\  Law  was  regarded  as  super- 
fluous, —  brotherly  love  alone  was  sufficient.^  If  all  obey  the 
precepts  of  Christian  love,  no  one  would  fear  injur}'  from  another, 
nor  would  any  compel  another  to  give  redress.  Since  too  high  a 
degree  of  self-denial  will  seldom  be  found,  Christian  morality 
could  afi'ord  to  lay  down  the  precept :  "  Whosoever  shall  smite 
thee  on  thy  right  cheek,  turn  to  him  the  other  also."  ^  The 
heathen  might  have  his  State  and  its  legal  system ;  but  between 
Christians  brotherly  love  was  all  in  all. 

The  Christian  doctrine,  the  doctrine  of  a  sect  at  first  oppressed, 
concerned  itself  with  the  State  only  in  so  far  as  it  enjoined  its 
own  followers  not  to  come  into  conflict  with  the  laws  of  the  State. 
"  Render  therefore  unto  Caesar  the  things  which  are  Caesar's  " 
are  the  words  of  Christ  himself.  With  this  end  in  view,  and  for 
no  other  purpose,  and  certainly  not  in  the  sense  of  giving  divine 
sanction  to  institutions  at  the  time  existing,  Christ  also  said : 
"  Put  up  again  thy  sword  into  his  place  :  for  all  they  that  take  the 
sword  shall  perish  with  the  sword."  ^     In  a  doctrine  based  upon 

'  Cf.  P.  Janet,  "Histoire  de  la  philosophie  morale  et  politique"  (2  vols., 
Paris,  1868),  I,  p.  216. 

2  Matthew,  v,  39.  ^  /bj^/,^  xxvi,  52. 

392 


Chapter  II]  THE  middle  AGES  [§  76 

the  principle :  "  ]\Iy  kingdom  is  not  of  this  world,"  these  sayings 
could  have  no  other  meaning.  The  aid  of  a  more  exact  transla- 
tion was  not  required  (although  it  was  thereby  verified),  in  order 
to  ascertain  that  this  did  not  contain  a  sanction  of  the  death 
penalty.^  Moreover,  the  well-known  words  of  the  Apostle  Paul  ^ 
did  not  mean  that  the  civil  authority,  as  it  then  existed,  satisfied 
the  requirements  of  the  Christian  doctrine ;  but  only  that  the 
Christian  should  perceive  in  this  civil  authority  merely  a  mani- 
festation of  a  divine  providence.  It  was  not  the  part  of  Christian 
duty  to  oppose  it,  even  though  it  was  not  at  that  time  a  Christian 
institution. 

Changed  Position  of  Christianity  as  a  State  Religion.  —  When 
Cliristianity  was  raised  from  its  position  of  an  insignificant  sect 
to  that  of  a  State  religion,  its  earlier  conception  of  law  and  the 
State  necessarily  underwent  a  change.  This  was  furthered  by  the 
fact  that  the  Church  at  first  permitted,  and  indeed  later  required, 
an  active  persecution  of  unbelievers.  ]\Ioreover,  when  the  State 
came  under  the  influence  of  the  Christian  ideal  of  morality,  it 
became  necessary  to  find  a  way  to  bring  into  harmony  with  this 
ideal  the  barbarous  system  of  criminal  law  which  then  prevailed 
in  the  State,  and  also  to  justify  the  cruel  persecutions  of  heresy. 
This  end  was  easily  attained  by  ascribing  the  State  and  its  system 
of  law  to  a  divine  origin,  thereby  apparently  withdrawing  them 
from  human  direction  and  interference. 

liesponsibility  for  all  the  atrocities  committed  in  the  name  of 
justice  was  thus  lifted  from  the  shoulders  of  humanity ;  it  was  no 
longer  encum})ent  upon  the  human  mind  to  find  a  way  to  har- 
monize the  State  and  law  as  human  creations  with  the  Christian 
system  of  morality.  The  problem  to  be  solved  was  rather  this : 
to  find  a  way  to  bring  the  presence  of  war,  pestilence,  and  other 
destructive  phenomena  of  nature  into  harmony  with  the  eternal 
goodness  of  God. 

§  70.  Views  of  Medieval  Philosophy  as  Exemplified  by  Thomas 
Aquinas.  — Thomas  Aquinas,^  whom  it  is  proper  to  regard  as  the 

*  Cf.  Helzel,  "Die  Todesstrafe  in  ihrer  culturgeschiehtlichen  Entwick- 
lung" (1870),  pp.  49  et  seq. 

>*  The  passages  referred  to  is:  Romans,  xiii,  1-6.  "Let  every  soul  be 
subject  to  th(>  liiglier  powers.  For  there  is  no  power  but  of  God ;  the 
powers  tliat  be  are  ordained  of  God.     Etc." 

'  B.  1125-  (?)  d.  1274.  The  best  modern  edition  of  his  works  is  that 
prepared  at  the  expense  of  Leo  XIll  (Ronu\  1<S82-1'.)()3).  Most  of  the 
passages  referred  to  in  this  chapter  can  be  found  in  English  translation  in 
Rickaby,  "Aquinas  Ethicus"  (London,  1896). 

393 


§  7(3]  niöTOIlY    OF   THE   THEORIES   OF   CRIMINAL    LAW       [Pakt    II 

central  figure  in  the  philosophy  of  the  Middle  Ages,  did  not  dis- 
guise from  liiniself  the  fact  that  the  penalties  inflicted  by  human 
agencies  went  far  beyond  the  "  medicina  "  (as  required  by  Chris- 
tian morality)  of  the  offender.  But  he  satisfied  himself  with  the 
reflection  that  the  same  could  be  said  of  the  eternal  damnation 
ordained  by  God.  Thus  there  appeared  to  be  divine  authority 
for  the  maxim :  "  Pestilente  flagellato  stultus  sapientior  fit,"  ^ 
especially  if  the  "  vindicatio  "  (as  distinguished  from  the  "  medi- 
cina ")  was  justified  on  the  ground  that  it  was  directed  towards  a 
"  coercitio  malorum  "  (deterrence).  He,  however,  was  not  of 
the  opinion  that,  since  deterrence  is  the  purpose  of  punishment, 
the  basis  of  punishment  is  the  wickedness  of  those  whose  deter- 
rence is  intended,  rather  than  the  wickedness  of  the  oft'ender. 
^Moreover,  he  was  far  from  believing  that  such  a  principle,  laid 
down  in  so  positive  a  manner,  was  in  harmony  with  the  principles 
of  divine  justice.  On  the  contrary,  he  clearly  announced,  as 
Augustine  had  done  before  him,^  that  temporal  justice  should  be 
merely  an  imitation  of  divine  justice. 

However,  this  brilliant  and  exact  philosopher  did  not  overlook  a 
distinction  which  Plato  had  allowed  to  pass  unnoticed.  The 
"  lex  humana  "  —  the  human  reason  —  is  parcel  of  the  divine 
reason,  and  has  the  mission  of  searching  out  the  "  lex  aeterna," 
i.e.  that  ultimate  destiny  of  all  being,  ordained  of  God.^  It  has 
the  duty  of  deducing  from  the  "  lex  a?terna  "  definite  conclusions, 
but  it  cannot  punish  each  and  every  sin  in  accordance  with  di\-ine 
justice,  — "  quia  dum  auft'erre  vellet  omnia  mala,  sequeretur 
quod  etiam  multa  bona  tollerentur  et  impedirentur."  ^  This  was 
the  first  attempt,  founded  on  a  correct  basis,  to  distinguish  be- 
tween law  and  morality,  —  since  it  assumed  that  the  entire  province 
of  morality  was  comprehended  by  the  term  "  divine  justice."  As 
a  result  of  this  idea  his  entire  discussion  is  based  upon  considera- 
tion of  utility ;  and  it  comes  to  appear  as  if  the  principle  of  retalia- 
tion, which  together  with  "  medicina  "  and  "  coercitio  malorum  " 

2  "Summa  TheologiaB",  2,  1,  qu.  87,  n.  3,  4.  Old  Testament,  Proverbs, 
xix,  25   ("Smite  a  scorner,  and  the  simple  will  beware.") 

3  "Summa  Theologiae",  II,  2,  qu.  108,  art.  3,  n.  5 :  "Dieendum  quod 
sieut  Augustinus  dicit  judicium  humanuni  debet  imitari  divinum  judicium 
in  manifestis  Dei  judiciis,  quibus  homines  spiritualiter  damnat  pro  proprio 
peccato.  Occulta  vero  Dei  judieia  quibus  temporaliter  aliquos  punit 
absque  culpa  {e.g.  the  children  for  the  sins  of  the  father)  non  potest  hu- 
manum  judicium  imitari,  quia  homo  non  potest  comprendere  horum  judi- 
ciorum  rationem." 

*  Aquinas,  like  Aristotle,  treats  of  man  according  to  his  "t^Xos." 

*  "L.  theol.",  II,  1,  qu.  90,  91,  95  a,  1. 

394 


Chapter  II]  THE  MIDDLE  AGES  [§  76 

(deterrence)  was  regarded  as  an  imitation  of  divine  justice,  is 
completely  abandoned. 

It  must  not  be  forgotten,  however,  that  it  is  characteristic  of 
the  philosophy  of  the  ^Middle  Ages,  with  all  its  freedom  of  dis- 
cussion, to  adhere  to  the  belief  in  authority,  and  it  is  in  accord 
herewith  that  Thomas  Aquinas  suggested  that  the  "  lex  humana  " 
needs  to  be  supplemented  by  divine  {i.e.  revealed)  law.^  Conse- 
quently, it  came  about  that  since  the  Mosaic  law  was  also  re- 
garded as  revealed  law,  the  principle  of  retaliation  in  its  widest 
sense  was  justified,  —  even  if  one  should  overlook  the  fact  that 
the  maxim  borrowed  from  Aristotle :  "  Per  poenam  reparatur 
sequalitas,"  which  Thomas  Aquinas  advances  in  another  passage, 
is  also  an  invocation  of  this  same  principle.'  But,  with  a  more 
searching  view  than  many  of  the  modern  writers,  this  philosopher 
of  the  ^Middle  Ages  saw  that,  although  he  made  a  distinction 
between  law  and  morality,  he  was  regarding  law  as  merely  a  modi- 
fied and  limited  form  of  morality ;  thus  e.g.  he  saw  that  the  rule : 
"  Thou  shalt  not  kill  "  is  merely  a  single  consequence  of  the  general 
principle :  "  Do  harm  to  no  one."  ^  Are  there  not  many  much- 
argued  modern  questions  in  which  we  discuss  whether  a  criminal 
law  (or  perhaps  a  police  regulation)  concerns  a  violation  of  this  or 
that  principle,  —  whether  it  invoh-es  an  independent  or  subordi- 
nate, a  compound  or  simple  principle  —  that  savor  more  of  scholas- 
ticism than  this  simple  but  comprehensive  observation  of  the 
great  scholastic  of  the  ^liddle  Ages? 

The  Lack  of  Interest  of  the  Medieval  Philosophers  in  Criminal 
Law.  —  Since  the  greatest  of  the  medieval  philosophers  devotes 
only  a  meager  and  cursory  discussion  to  the  question  of  the  tem- 
poral power  of  punishment,  in  which  he  merely  suggests  a  well- 
founded  doubt  as  to  the  justice  of  punishment  inflicted  by  human 
agencies,  is  it  to  be  wondered  that  the  rest  of  the  philosophy  of 
the  ^Middle  Ages  (apart  from  the  real  controversy  as  to  the  rela- 
tion of  the  spiritual  and  the  temporal  powers)  passes  over,  as  it 
were  with  closed  eyes,  social  conditions  of  the  most  evil  character  ? 
One  need  not  be  surprised  to  find  that  it  loses  itself  in  a  vain  dis- 
play of  definitions,  or  in  mysticism  touching  upon  the  relation  of 
man  and  God.  It  has  no  sense  of  those  vagaries  of  criminal 
justice  which  are  the  shame  of  the  later  Middle  Ages;    and  it 

•  L.  c,  art.  4. 

7  II,  2  qu.  108,  art.  4. 

8  L.  c.  qu.  91,  art.  2,  qu.  95,  art.  2. 

395 


§  70]  HISTORY   OF   THE   THEORIES   OF    CRIMINAL    LAW      [Part   II 

received  from  them  no  inspiration  to  investigate  the  doctrinal 
problems  of  criminal  law. 

It  was  certainly  possible  to  have  made  progress,  if  there  had 
been  a  development  of  the  line  of  thought  suggested  by  the  "  Doc- 
tor Universalis  "  as  to  the  bearing  of  the  "  lex  humana  "  upon  the 
criminal  law.  But  nothing  of  this  sort  was  done.  Those  sup- 
porting the  worldly  power  of  the  Pope  had  no  greater  interest 
than  the  champions  of  the  independence  of  the  temporal  power,  in 
discussing  or  criticizing  criminal  justice  as  it  then  existed.  The 
former  were  satisfied  with  the  criminal  law,  since  it  granted  (at 
least  in  theory)  the  greatest  possible  protection  to  the  Church, 
and  treated  those  of  another  faith  as  criminals.  The  latter  also^ 
since  they  argued  that  the  independence  of  the  temporal  power 
was  ordained  of  God,  were  obliged  to  uphold  the  divine  origin  of 
criminal  law  in  its  existing  condition.^  At  any  rate,  they  had  no 
special  motive  to  subject  it  to  criticism  and  examination.  Casual 
observations  as  to  the  application  of  punishment  can  interest  us 
little,  when  they  consist  solely  of  repetitions  of  passages  from  the 
Bible,  from  Aristotle,  and  from  the  Corpus  Juris. 

The  question  naturally  suggests  itself:  Whether,  if  the  power 
of  the  Papacy  had  been  undisputed  and  the  prosecution  of  heresy 
had  not  been  necessary,  the  philosophy  of  the  ]\Iiddle  Ages  might 
not  have  attained  to  a  critical  examination  of  the  fundamental 
elements  of  criminal  law?  The  origin  of  the  theory  of  the  Law 
of  Nature  is  to  be  sought  in  the  darkness  of  the  INIiddle  Ages. 
This,  together  with  the  theory  of  the  sovereignty  of  the  peopIe,^° 
which  based  the  power  of  the  ruler  upon  the  consent  of  the  gov- 
erned and  was  not  unknown  to  medieval  Europe,  constituted  a 
sufficient  foundation  upon  which  the  fundamentals  of  criminal 
law  could  be  developed  through  the  operations  of  the  human  will 
seeking  to  attain  rational  purposes.  Immediately  after  the  Refor- 
mation, the  Catholic  philosophers,  in  their  discussion  of  the  State 
and  the  legal  system,  exercised  the  utmost  freedom.  This  is 
especially  true  of  Älolina  and  Suarez.^^  But  at  this  point  we  en- 
counter the  narrowing  and  retrogressive  influence  of  the  Reforma- 

9  This  is  especially  noticeable  in,  e.g.  Dante,  "De  Monarchia"  [English 
translation  by  A.  Henry,  Houghton,  Mifflin  and  Co.,  1904],  where  in  a 
peculiar  manner  it  is  argued  that  the  temporal  power  is  given  divine  sanc- 
tion through  the  fact  that  Christ  underwent  punishment  for  all  the  sins  of 
humanity  by  means  of  the  temporal  power. 

^°  Cf.  Janet,  1,  p.  403.  Gierke,  "Johannes  Althusius  und  die  Entwick- 
limg  der  naturreehtlichen  Staatstheorien"  (Breslau,  1880),  pp.  63,  64. 

"  C/.  Gierke,  p.  65. 

396 


Chapter  II]  THE  MIDDLE  AGES  [§  76 

tion.  There  could  not  be  further  open-minded  discussion  (except 
the  cynical  utilitarianism  of  Macchiavelli)  ^-  until  it  was  perceived 
that  the  modern  legal  system  was  independent  of  the  orthodoxy 
of  either  the  Catholic  or  the  Protestant.  It  was  only  by  slow 
degrees  that  the  mass  of  the  people  could  attain  this  attitude. 
The  Reformers  were  apparently  far  removed  from  the  opinion 
that  it  is  possible  for  people  to  live  in  proximity  to  one  another 
in  a  legal  and  moral  manner,  without  a  definite  and  fixed  confes- 
sion of  faith.  This  truth  first  became  apparent  in  the  practice 
of  those  States  which,  although  Catholic  or  Protestant,  were 
located  near  one  another  and  obliged  to  have  mutual  intercourse. 
Consequently,  it  was  not  entirely  an  accident  that  the  writer 
who  is  regarded  as  the  founder  of  modern  international  law  was 
also  the  propounder  of  the  first  modern  theory  of  criminal  juris- 
prudence, —  Hugo  Grotius. 

12  Cf.  especially  the  seventeentli  chapter  of  "The  Prince." 


397 


Chapter  III 
CRIMINAL  THEORIES  FROM  GROTIUS  TO  ROUSSEAU 


§  77.  Grotius, 

§  78.  Hobbes. 

§  79.  Spinoza. 

§  80.  Pufendorf. 


§81.     Other      Writers.  Locke; 

Leibnitz ;     Coeceji ;     Tho- 
masius ;  Wolff ;  Rousseau. 


§  77.  Grotius.  —  Hugo  Grotius  (while  not  felicitous  in  his 
conception  of  the  right  of  war  as  the  right  of  the  offended  or 
injured  State  to  punish)  undertakes,  in  the  20th  chapter  of  the 
second  volume  of  his  famous  work  "  De  Jure  Belli  et  Pacis  ",  a 
complete  discussion  of  the  principle,  scope,  and  enforcement  of 
criminal  law.  In  that  comprehensive  and  profound  spirit,  which 
is  characteristic  of  his  work,  he  takes  up  the  problem  in  such 
breadth  and  thoroughness,  that  his  theory  (which  in  certain 
aspects  even  attempts  to  portray  the  historical  development  of 
the  subject)  remained  for  a  long  time  essentially  undisturbed  by 
his  successors,  although  they  may  have  surpassed  him  in  their 
treatment  of  some  particulars. 

It  is  still  the  idea  of  retribution  which  forms  the  foundation  of 
Grotius'  theory,  and  this  idea  is  left  without  further  support. 
The  most  there  is  to  say  for  it  is  that  it  does  not  conflict  with  that 
ideal  of  fairness  ("  sequitas  ")  which  was  to  Grotius  the  essential 
element  of  the  positive  law.  In  other  words,  this  idea  of  retribu- 
tion does  not  conflict  with  those  conditions  which,  for  the  affairs 
of  man,  are  to  be  inferred  from  his  nature  and  his  inherent  social 
instinct  ("  appetitus  socialis  ").  Punishment  is  something  which 
results  directly  from  the  nature  of  crime :  "  Crimen  grave  non 
potest  non  esse  punibile."  ^  The  assertion  of  this  retribution  was 
forced  upon  Grotius  by  his  empirical  (to  say  the  least)  definition 
of  punishment:  "Malum  passionis  quod  infligitur  ob  malum 
actionis  ",  -  —  a  definition  often  repeated  but  more  appropriate 
to  his  time  than  now. 

>  II,  20,  §  2,  n.  3.  2  II,  20,  §  1. 

398 


Chapter  III]      THEORIES   FROM    GROTIUS   TO   ROUSSEAU  [§  77 

But  retribution  was  by  Grotius  conceived  in  a  sense  different 
from  that  previously  prevailing.  The  question  whether  punish- 
ment must  necessarily  consist  in  some  evil  for  the  party  punished 
had  not  yet  been  raised.  In  the  Middle  Ages  and  in  ancient  times, 
retribution  was  deemed  both  a  duiy  and  a  right;  to  Grotius  it  was 
a  privilege.  Just  as  every  right  as  Grotius  asserted  ^  is  to  be  exer- 
cised only  in  pursuance  of  some  rational  purpose,  so  it  was  with 
criminal  law.^  Therefore,  says  Grotius,  even  vengeance  is  not 
to  be  repudiated,  provided  it  has  a  rational  purpose,  e.g.,  the  pur- 
pose of  preventing,  in  the  future,  injuries  similar  to  those  received. 
Grotius,  indeed,  correctly  recognized  vengeance  as  the  historic 
root  of  criminal  law.  He  posited  the  right  to  take  vengeance  ^ 
as  originally  belonging  to  every  one ;  it  was  only  for  reasons  of 
expediency,  notably  because  vengeance  is  so  apt  to  transgress 
the  limits  imposed  by  reason,  that  the  criminal  law  was  placed 
in  the  hands  of  the  judge  (the  State). ^ 

Range  of  Punishable  Acts.  —  The  question  as  to  what  crimes 
should  be  punished  was  left  as  completely  untouched  by  Grotius 
as  were  the  questions  concerning  the  amount  of  punishment.  In 
this  regard,  since  he  considers  law  and  morality  to  be  in  their 
very  essence  identical,  he  proceeds  upon  the  principle  that  sin 
("  peccatum  ")  and  punishable  acts  (in  their  essence  and  apart 
from  the  requirements  of  a  concrete  system  of  law)  are  likewise 
identical.  Thus,  it  was  e.g.,  with  the  ancient  Greeks,  who  recog- 
nized no  principal  distinction  in  this  respect  and  regarded  extrav- 
agance and  arrogance  ("  vßpi^  ")  as  acts  and  attitudes  possibly 
amenable  to  criminal  punishment.  The  principle  that  punish- 
ment is  merely  a  right  and  not  a  duty  made  it  possible  for  him  to 
reach  the  correct  conclusion  that  the  range  of  punishable  acts  is 
narrower  than  that  of  immoral  acts.  No  punishment  should  be 
inflicted  for  acts  which  neither  directly  nor  indirectly  touch 
human  society  (acts  the  injurious  effects  of  which  do  not  extend 
to  others).  Since  the  State  is  not  bound  to  punish  but  is  merely 
entitled  to  punish,  there  also,  according  to  Grotius,  exists  the 
possibility  of  foregoing  punishment  by  i)ar(l()n,  and  as  reasons  for 

'  Thus  also  e.g.  the  right  of  property  (11,  20,  §  5). 

^  II,  20,  §  22,11.  1  :  "Naturalitur  qui  deliquit,  in  eo  statu  est,  ut  puniri 
licite  possit ;    seel  ideo  non  sequitur  euni  delu'rc  puniri." 

'"  Henee,  under  extraordinary  circumstances.  thi>  right  of  individuals 
to  punish  can  even  now  find  a  i)hice.     Cf.  II,  20,  §  9,  n.  2. 

ß  II,  20,  §  8,  n.  4.  Cf.  also  li,  20,  §  40,  n.  1.  Tin«  "Summa  potestas" 
in  the  State  docs  not  by  virtue  of  its  nature  possess  the  exclusive  right  to 
punish  :   "Subjectio  aliis  id  jus  abstulit." 

399 


§77]  HISTORY   OF   THE   THEORIES    OF    CRIMINAL    LAW      [Paht    II 

this  pardon,  considerations  of  utility  are  acknowledged  as  suffi- 
cient. 

Amount  of  Punishment.  —  In  respect  to  the  amount  of  punish- 
ment, we  indeed  find  in  Grotius  considerable  uncertainty  and 
inconsistency.  On  one  hand,  he  has  recourse  to  the  Aristotelian 
argument  which  ascribes  punishment  ^  not  to  a  "  Justitia  assigna- 
trix  "  but  rather  to  a  "  Justitia  expletrix."  Accordingly,  he 
regards  punishment  as  an  adjustment  of  the  injury  (although 
surpassing  the  exact  amount).^  Yet,  in  another  passage,  in  the 
discussion  of  self-defense,  he  reaches  the  correct  ideas  that  (logi- 
cally speaking)  there  is  no  such  thing  äs  commensurability  of  guilt 
and  punishment,  and  that  it  is  merely  a  conscientious  obligation 
("  Caritas  ")  ^  on  the  part  of  legislation  to  exercise  moderation  in 
the  warding  off  of  wrong.  In  connection  herewith  it  is  well  if 
the  legislator  be  given  a  free  hand  in  fixing  the  punishment  in 
accordance  with  reasons  of  utility,  although  there  must  be  no 
punishment  "  ultra  meritum  "  ;  ^°    but  how  define  "  meritum  "? 

Justification  of  Punishment  from  the  Standpoint  of  the  Criminal. 
—  The  punishment  was  also  justified  from  the  standpoint  of  the 
criminal  by  a  reference  to  his  own  will,  to  a  voluntary  acquies- 
cence :  "  qui  deliquit  sua  voluntate  se  videtur  obligasse  poense, 
quia  crimen  grave  non  potest  esse  non  punibile,  ut  qui  directe  vult 
peccare  per  consequentiam  et  poenam  mereri  voluerit."  How- 
ever, this  standpoint  of  voluntary  acquiescence  does  not  lead  him 
to  give  to  the  statute  law  such  preeminent  importance  as  later 
is  found  in  Feuerbach.  It  does  not  appear  in  Grotius  as  a  founda- 
tion but  rather  a  limitation  of  the  criminal  power.  This  is  appar- 
ent in  the  sense  that  he  considered  it  ill-advised  not  to  give  full 
enforcement  to  any  statute  that  has  once  been  enacted, ^^  since, 
in  any  case,  an  act  which  is  in  violation  of  a  special  criminal 
statute  through  this  alone  is  dangerous  and  deserving  of  punish- 
ment :    "  Lex  prohibens  omnia  peccata  geminat ;  non  enim  sim- 

^  II,  20,  §§  2  et  seq.,  and  in  regard  to  this,  Hartenstein,  "Darstellung- 
der  Rechtsphilosophie  des  Hugo  Grotius"  in  "Abhandlungen  d.  Königl. 
Sachs.  Gesellschaft  der  Wissenschaften,  histor-philosoph.  Klasse"  (1850), 
pp.  529,  530. 

^  "Nee  enim  sequum  est,  ut  par  sit  periculum  noeentis  et  innoeentis", 
II,  20,  §32,  n.  2.  Cf.  in  regard  to  this  Laistner,  "Das  Recht  in  der 
Strafe"  (1872),  p.  64.  On  these  grounds  Grotius  under  some  circum- 
stances approved  also  of  the  modified  death  penalties. 

9  II,  1,  §  10,  n.  1  ;    III,  1,  §  4,  n.  2. 

10  II,  20,  §  28. 

11  II,  20,  §  2,  n.  3.  —  §  24,  n.  1-3.  Here  indeed  Grotius  has  in  mind 
a  new  criminal  statute. 

400 


Chapter  III]      THEORIES    FROM    GROTIUS    TO    ROUSSEAU  [§  78 

plex  est  peccatum,  sed  etiam  vetitum  committere  ",  as  Augustine 
had  previously  stated.^" 

Defects  and  Merits  of  Grotius.  —  The  weakness  of  this  famous 
legal  philosopher's  theory  of  criminal  law  consisted  chiefly  in 
his  having,  from  the  outset,  regarded  punishment  as  an  evil. 
Punishment  as  reaction  against  immorality  and  relatively  as  re- 
action against  wrong  permits  of  an  ethical  and  logical  foundation  ; 
but  as  an  evil  it  can  only  be  founded  empirically.  Thus  the  idea 
of  retribution  has  to  be  invoked  as  an  aid,  and  presumed  without 
proof.  But  the  idea  of  retribution  necessarily  implies  that  its 
exercise  is  not  primarily  a  right  but  is  essentially  a  duty  and  only 
incidentally  a  right.  It  has  also  the  consequence  that,  what- 
ever treatment  is  required  by  retribution,  nothing  can  be  deducted 
from  it  for  considerations  of  utility  and  humanity.  Yet  Grotius 
with  accurate  insight  perceived  that  in  the  hands  of  the  State 
punishment  in  every  case  is  not  an  unconditional  duty. 

But,  apart  from  all  this,  the  criminal  theory  of  Hugo  Grotius 
is  remarkably  superior  to  the  attempts  which,  for  almost  two 
hundred  years  thereafter,  were  made  by  others  towards  solving 
the  problem.  The  possibility  that  historic  development  may  be 
justified,  a  point  which  is  indisputable  in  the  view  of  Grotius,  but 
which  is  utterly  repellent  to  dull  and  narrow  minds,  prevented 
its  general  acceptance.  It  often  happens  that  one-sided  theories 
have  the  greater  following,  if  the  consequences  imported  in  the 
theories  serve  definite  temporary  needs  or  are  capable  of  easier 
comprehension.  The  successors  of  Hugo  Grotius  are  especially 
illustrative  of  this  phenomenon. 

§  7S.  Hobbes.  —  While  Grotius  derived  the  legal  system  and 
the  State  from  a  compact  of  individuals,  yet  the  impulse  which 
led  to  this  compact  was  a  moral  one  based  upon  the  general  arrange- 
ment of  the  universe.  He  regarded  (not  always  consistently, 
however)  the  State  as  bound  by  this  general  moral  arrangement, 
just  as  the  individual.  The  adherents  of  the  doctrine  of  the  Law 
of  Nature  little  by  little  allowed  the  element  of  arbitrary  or  dis- 
cretional power  to  appear  in  this  com])act.  Influenced  by  the 
turmoil  and  confusion  of  the  English  Revolution,  Thomas  Hobbes 

•-  The  passage  IT,  20,  §  3.^,  is  not  correctly  construed  liy  LaUlncr, 
p.  GO  Anm.  4.  Here  Grotius  does  not  say  that  the  judfre  should  not 
apply  a  severe  criminal  statute  if  ther(>  is  a  {general  custom  of  committing: 
the  offense  in  question.  He  says  merely  that  such  a  custom  may  he  for 
the  judge  a  mitigating  circumstance,  wliile  the  legislator  may  linil  heri'iu 
a  ground  for  increasing  the  penalty. 

401 


§  78]  HISTORY   OF   THE   THEORIES   OF   CRIMINAL   LAW      [Pakt   II 

founded  the  State  and  the  legal  system  upon  a  pessimistic  \iew 
of  human  nature.  The  evil  natural  attributes  of  individuals 
should  be  held  in  check  by  the  State  and  the  law.  Unlimited 
selfishness,  or  to  speak  more  accurately,  desire  to  injure  (others, 
appears  to  him  to  be  the  fundamental  characteristic  of  human 
nature.  The  State,  accordingly,  is  merely  an  institution  for 
coercion  calculated  to  put  an  end  to  "  war  of  all  on  all  "  arising 
from  such  selfishness  and  to  the  general  insecurity  therewith 
connected.  Before  everything  else  in  law,  punishment  is  neces- 
sary. A  mere  contract  would  soon  be  broken  by  passion,  "  ut 
aperte  majus  sit  periculum  fecisse  quam  non  fecisse.  Omnes 
enim  homines  necessitate  naturse  id  eligunt  quod  sibimet  ipsis 
apparentur  bonum  est."  ^  Punishment  has  no  purpose  other  than 
that  of  deterrence  by  the  threat  contained  in  the  statute. 

Since  Hobbes  was  not  capable  of  any  deep  historical  compre- 
hension he  failed  to  discover  the  relation  ^  between  revenge  and 
punishment,  and  he  considered  that  punishment  did  not  originate 
or  become  possible  until  the  existence  of  the  State.  He  thus 
stands  primarily  upon  a  purely  relative  theory  to  Avhich  the  later 
theory  of  Feuerbach  exhibits  a  marked  kinship,  —  although 
Feuerbach,  as  is  well  known,  wrote  in  opposition  to  Hobbes.^ 
The  relation  between  a  punishable  wrong  and  a  civil  wrong  on 
one  hand,  and  on  the  other  the  relation  between  criminal  law  and 
morality,  is  almost  completely  abandoned.^  To  Hobbes,  torts 
and  the  payment  of  damages  have  nothing  in  common  with  crime 
and  punishment.  While  he  also  recognizes  that,  for  example, 
theft,  adultery,  and  manslaughter  are  forbidden  by  the  "  Lex 
naturalis  ",  and  that  the  power  of  the  State  can  not  be  at  variance 
with  the  "  Lex  naturalis  ",  A^et  in  Hobbes  this  observation  of  the 
"  Lex  naturalis  "  is  explained  away  by  the  statement  that  the 
power  of  the  State  is  obliged  to  create  the  regulation  and  to  main- 
tain a  regulation  that  has  once  been  prepared,  but  the  kind  and 
the  manner  of  the  form  of  this  regulation  should  depend  entirely 
upon  the  pleasure  of  the  holder  of  the  sovereign  power :  "  Furtum 
homicidium    adulterium    atque    injuria    omnes    legibus    naturje 

1  "De  Give",  c.  6,  §  4.  Cf.  also  "Leviathan",  c.  28:  "Poena  malum 
est  transgressor!  legis  auetoritate  publica  inflicta  eo  fine,  ut  terrore  ejus 
voluntates  ci\dum  ad  obedientiam  conformentur."  "De  Give"  was  first 
published  in  1646. 

-  "Le^viathan",  I.e. 

^  "Anti-Hobbes,  oder  über  die  Grenzen  der  bürgerlichen  Gewalt" 
(1798). 

^  "De  Give",  c.  3,  §  4. 

402 


Chapter  III]      THEORIES   FROM   GROTIUS   TO   ROUSSEAU  [§  78 

prohibentur,  cseterum  quid  in  cive  furtum,  quid  homicidium, 
quid  adulterium,  quid  denique  injuriae  appellandum  sit,  id  non 
naturali,  sed  civili  lege  determinandum  est."  '' 

From  which  it  fohows  further,  that  the  amount  of  punishment 
absolutely  depends  upon  the  discretion  of  the  "  summa  potestas  " 
in  the  State,  acting  in  pursuance  of  the  "  utilitas  publica."  The 
reference  of  the  punishment  to  something  that  is  past  is  expressly 
repudiated  as  absurd.^  A  penalty  fixed  by  statute  must  not  be 
exceeded,  although  it  is  not  at  all  necessary  that  there  be  a  special 
threat  of  punishment,  a  mere  prohibition  being  sufficient  for  the 
punishment  of  its  transgressor.  For  that  would  be  nothing  other 
than  to  allow  another  to  make  amends  for  a  fault  committed  by 
the  legislator.'' 

Justification  of  Punishment  from  Standpoint  of  Criminal.  — 
The  justification  of  punishment  from  the  standpoint  of  the  party 
punished  is  not  entirely  disregarded  by  Hobbes,  —  but  his  argu- 
ment is  almost  inconceivably  weak.  Hobbes,  to  be  sure,  realized 
the  inadequacy  of  the  fiction  that  the  offender  in  the  commission 
of  the  crime  voluntarily  acquiesced  in  the  punishment.  As  the 
later  more  detailed  arguments  of  Pufendorf  have  shown,  this  recog- 
nition is  not  entirely  unimportant  in  the  appraisement  of  acts  based 
upon  the  natural  impulse  of  self-preservation,  and  is  also  in  con- 
trast with  the  extreme  consequences  of  the  inquisitorial  prin- 
ciple in  criminal  procedure.  Hobbes,  however,  believed  that  he 
had  done  enough  in  this  respect,  since  as  part  of  the  contents  of 
the  contract  (upon  which  according  to  his  theory  the  State  was 
based)  he  had  adopted  the  principle  that  no  one  should  render 
assistance  to  those  whom  the  iiolder  of  the  "  summa  potestas  " 
deemed  it  well  to  punish.^  But  the  right  to  punish,  he  believed, 
did  not  need  to  be  specially  transferred  to  the  highest  power  in 
the  State.  It  was  originally  possessed  by  "  all  against  all." 
Hereby  Hobbes  (unconscious  of  the  contradiction)  comes  back  to 
an  absolute  basis  for  criminal  law.  It  is  not  a  basis  resting  upon 
an  ethical  idea,  but  merely  upon  a  reference  to  that  general  posi- 
tion of  warfare  which  is  allowed  to  each  against  every  one  else. 
It  is  thus  a  founding  of  criminal  law  upon  a  power  not  controlled 

^  "De  Cive",  6,  §  16.  Here  moreover  ITolilies  confuses  the  civil  law 
question  as  to  how  ownership,  etc.,  arises  with  the  criminal  law  question 
as  to  what  violations  of  once  existing  property  constitutes  theft,  etc. 

ß  Ibid.,  3,  §  11. 

^  Ibid.,  13,  §  16. 

8  /5ic/.^  6,  §  5;   "Leviathan",  c.  28,  init. 

403 


§  79)  HISTORY    OF   THE   THEORIES    OF    CRIMINAL    LAW      [Part   1 1 

by  an  ethical  regulation.  In  the  case  of  those  crimes  whose  essence 
consists  in  an  attack  upon  the  authority  of  the  State  as  such,  and 
so  in  crimes  of  "  lese  majeste  ",  Ilobbes  believed  this  pure  condi- 
tion of  warfare  to  exist.  This  principle  justified  such  abnormal 
rules  as  the  extension  of  certain  punishments  to  the  descendants 
of  those  guilty  of  high  treason.  Yet,  as  a  principle,  it  is  illumi- 
nated by  one  correct  idea,  viz.,  that  (as  later  maintained  by  Fichte) 
the  criminal  law  and  penal  statutes  may  to  a  certain  extent  be 
conceived  as  limitations  upon  vengeance  and  the  right  of  war. 

§  79.  Spinoza.  —  It  is  a  peculiar  phenomenon,  to  which  Ahrens  ^ 
has  properly  called  attention,  that  opinions,  such  as  those  emanat- 
ing from  Hobbes  —  the  unrestrainable  power  of  the  individual 
uncurbed  by  ethical  motives  —  and  Pantheism  —  ascribing  no 
independence  to  personality  and  rather  regarding  it  merely  as  a 
transitory  manifestation  of  the  whole  —  are  in  accord  in  many  of 
their  results.  This  is  especially  the  case,  we  may  add,  in  respect 
to  criminal  law.  Thus  we  find  in  the  famous  "  Tractatus  theo- 
logico-politicus  "  -  of  Spinoza,  the  founder  of  modern  Pantheism, 
almost  the  same  foundation  of  criminal  law  as  in  Hobbes.  Accord- 
ing to  Spinoza,  law  in  its  origin  and  essential  nature  is  nothing 
other  than  force,  —  and  naturally  so,  since  ethical  ideals  presup- 
pose freedom.  But  if  the  activities  of  the  individual  being  are 
of  necessity  determined  by  the  universal  being,  then  these  activi- 
ties are  incapable  of  any  valuation  in  pursuance  of  an  idea  which 
presupposes  a  "  should  "  and  not  an  absolute  "  must."  The  large 
fish  have  the  right  to  swallow  the  small  fish ;  and  in  the  condition 
of  nature  every  one  has  the  right  to  take  and  do  that  to  which  his 
desire  prompts  him.^  He  acts  in  accordance  with  his  nature,  in 
accordance  with  the  law  of  the  universe  in  him  obtaining.  With 
Spinoza,  as  with  Hobbes,  it  is  only  the  consequent  general  inse- 
curity which  leads  to  the  compact  of  the  State  and  therewith 
to  criminal  law  (i.e.  that  criminal  law  imposed  by  the  State). 
This  latter,  properly  speaking,  did  not  come  into  existence  until 
the  State.  In  nature,  every  one  has  all  that  his  power  is  sufficient 
to  obtain ;  in  the  State,  the  power  of  the  State  acts  only  because 
individuals  have  irrevocably  acquiesced  therein.  The  aim  of  the 
punishing  power  and  of  the  criminal  law  is  to  secure  obedience, 
as  disobedience  constitutes  the  essence  of  crime.     Therefore,  the 

1  "Naturreeht",  Bd.  I,  p.  100  (6th  ed.). 

2  First  published  in  1670. 

'  "  Tract.",  c.  16  :  "Jus  itaque  naturale  unius  cujusque  hominis  non  sana 
ratione,  sed  cupiditate  et  potentia  determinatur." 

404 


Chapter  III]     theories  from  GROTIUS  to  ROUSSEAU  [§  79 

direct  purpose  of  the  criminal  statute  is  jear,  which  should  be  felt 
by  the  masses,  who  are  inclined  to  act  in  pursuance  of  their  baser 
sensual  desires  and  contrary  to  the  true  laws  of  nature :  "  terret 
vulgus  nisi  metuat."  In  other  words,  criminal  law  is  based  on 
deterrence  and  determinism.  It  is  left  undecided  whether  the 
effect  is  to  be  attributed  to  the  statute  or  to  the  execution  of  the 
punishment.^  But  in  one  respect,  Spinoza,  the  more  profound 
thinker,  differs  very  materially  from  Hobbes.  He  gives  to  the 
"  lex  naturalis",  from  which  the  State  may  not  completely  sepa- 
rate itself,  a  far  more  definite  meaning  than  had  been  given  by 
Hobbes.  His  philosophy  of  law  betrays  a  democratic  tendency 
in  the  remark  (reminding  one  of  Aristotle)  that  a  great  body  of 
people  who,  united,  exercise  the  criminal  power  will  not  readily 
do  anything  that  is  absolutely  perverse;  and  so  he  suggests  the 
conditions  of  lasting  sovereignty  to  be  the  satisfaction  of  the  true 
needs  of  the  people :  not  a  formal  contract  but  rather  rational 
agreement  binds  the  subjects.''  From  this  there  arises  a  far  wider 
limitation  of  the  power  of  the  State  in  respect  to  what  acts  may 
possibly  be  punished  (a  matter,  however,  argued  by  Spinoza  merely 
in  regard  to  freedom  of  thought  and  religious  belief). 

Influences  of  Spinoza's  Life  upon  his  Work.  —  Upon  the  whole, 
Spinoza's  philosophy  of  the  State  and  of  law  reflect  in  clear  out- 
lines the  peculiar  circumstances  of  the  philosopher's  life.  Spinoza 
belonged  to  the  Jewish  race,  which  was  at  that  time  almost  uni- 
versally persecuted.  This  circumstance  excluded  him  from  active 
participation  in  public  life ;  and  he  therefore  found  in  quiet  medi- 
tation and  investigation  of  the  relations  of  things  the  highest 
pleasure  and  calling  of  humanity.  For  this  reason  he  does  not 
expect  much  from  the  power  of  the  State;  but  he  does  demand 
at  least  a  certain  guarantee  of  quiet  and  the  enjoyment  of  the 
natural  essentials  of  life  and  above  everything  else  freedom  of 
investigation.  With  the  possible  exception  of  the  pro\ince  of 
freedom  of  thought  and  religious  faith,  there  was  hardly  an  oppor- 
tunity for  such  a  sensitive  and  retiring  disposition  to  have  any 
conflict  with  the  criminal  law,  —  a  conflict  experienced  by  even 
noble  natures  who  come  into  real  participation  and  active  share 
in  public  life.  He  regarded  criminal  law  as  essentially  intended 
only  for  the  rabble,  and  therefore  views  it  from  its  baser  side  as  a 

*  The  evil  entailed  by  the  punishment  must  be  greater  than  the  ad- 
vantage obtained  by  the  crime. 

*  "Ex  quibus  concludimus,  pactum  nuUam  vim  habere." 

405 


§  80]  HISTORY    OF   THE   THEORIES   OF    CRIMINAL    LAW      [Part   II 

means  of  deterrence  intended  to  hold  in  check  e\il  passions  and 
thus  he  overlooks  its  general  and  higher  ethical  significance.^ 
This  is  in  history  a  constantly  recurring  conception  and  attitude. 
Especially  is  this  the  case  among  the  ranks  of  the  fairly  comfort- 
ably situated  and  blase  middle  class,  who,  to  be  sure,  pay  taxes 
but  in  other  respects  are  inclined  to  follow  their  own  special 
interests,  until  some  unexpected  case  reminds  them  that  it  is  not 
always  the  common  people  who  come  into  contact  with  the  crimi- 
nal law  and  that  the  correct  limitation  of  the  criminal  power 
of  the  State  is  an  ideal  and  at  the  same  time  a  substantial  benefit 
to  all. 

§  80.  Pufendorf.  —  Samuel  von  Pufendorf,^  in  that  part  of 
his  work  which  deals  with  criminal  law,  was  fully  in  accord  with 
the  point  of  view  accepted  by  Hobbes,^  and  he  often  expressly 
appealed  thereto.^  Like  Hobbes,  he  denied  the  originally  ethical 
character  of  the  relationship  between  man  and  man ;  and,  like 
Hobbes,  he  considered  a  man  in  the  natural  state  as  entitled  to 
all  which  his  individual  power  enables  him  to  attain.  He  derived 
the  criminal  law,  belonging  exclusively  to  the  State,  from  a  simple 
waiver  of  the  right  originally  belonging  to  each  individual,  in 
pursuance  of  his  own  interest,  to  cause  harm  to  any  one  who  in 
his  view,  opposed  this  interest  or  stood  in  his  way."*  Punishment, 
in  the  true  sense,  according  to  Pufendorf,  exists  only  in  the  State, 
and  is  inflicted  "  al  imperante."  Of  retribution  as  a  principle  of 
punishment,  he  would  have  nothing,  —  "  non  est  homo  propter 

8  In  accordance  with  this  conception  little  attention  can  be  paid  to 
the  criminal.  Spinoza  entertains  no  doubt  as  to  the  expediency  and  legal 
propriety  of  the  death  penalty.  Where  he  deals  specially  with  punish- 
ment, he  almost  always  speaks  of  the  scaffold  as  "formido  malorum." 
C/.  Laistner,  "Das  Recht  in  der  Strafe"  (1872),  p.  78. 

1  Cf.  especially  the  third  chapter  of  the  eighth  volume  of  his  compre- 
hensive work,  "De  jure  naturae  et  gentium",  first  published  in  1672. 
The  chapter  referred  to  is  entitled:  "De  potestate  summi  imperantis 
in  vitam  ac  bona  civium  in  causa  delicti." 

2  I  am  unable  to  concur  in  the  statement  of  Heinze  ("Staats-  und 
strafrechthche  Erörterungen"),  p.  254,  that  Pufendorf  holds  essentially 
the  same  conception  as  Grotius. 

5  Cf.  particularly.  I.e.,  §  5,  where  in  opposition  to  Grotius,  it  is  argued 
that  criminal  justice  belongs  to  "justitia  expletrix." 

■*  Pufendorf,  like  Hobbes,  contemplates  the  right  of  punishing  as 
ultimately  merely  a  question  of  might.  No  attention  is  given  to  founding 
punishment  from  the  viewpoint  of  the  party  punished.  The  idea  of 
voluntary  subjection  to  punishment  is  very  correctly  and  effectively 
criticized:  "quum  nemo  delictum  admittat  quin  simul  speret,  sese 
latendo  aut  aUa  ratione  poenam  declinaturum."  However,  in  §  23, 
it  is  stated  that  no  one  can  complain  about  the  severity  of  a  punish- 
ment which  has  been  made  public  previous  to  the  commission  of  the 
offense. 

406 


Chapter  III]      THEORIES   FROM   GROTIUS   TO   ROUSSEAU  [§  80 

poenam,  sed  poena  propter  hominem,"  '  and  consequently  the 
principle  of  the  "  lex  talionis  "  in  criminal  law,  according  to  his 
view,  is  both  practically  and  theoretically  impossible.  The  true 
character  of  punishment  exists  rather  in  a  security  against  future 
injuries,  —  i.e.  deterrence  of  others,  or  reformation  (or  relatively 
a  "  making  harmless  ")  of  the  criminal  himself.  In  consequence 
of  this  (and  in  accord  with  a  fallacy  of  Pufendorf  and  of  many 
others),  as  applied  to  intentional  homicide,  the  death  penalty 
under  certain  circumstances  aj)])ears  justified. 

Comparison  with  his  Predecessors.  —  I'ufendorf,  as  perhaps  no 
other,  spread  abroad  through  Germany  those  fundamental  maxims 
of  the  absolute  power  of  the  State,  which  eliminated  the  State 
of  the  jNIiddle  Ages  and  its  social  system.  Yet  his  theory  of  the 
absolute  power  of  the  State  does  not  have  the  one-sided,  harsh, 
yet  essentially  logical  character,  which  distinguishes  the  theory 
of  the  State  and  law  propounded  by  Thomas  Ilobbes.  As  with 
Spinoza,  the  "  lex  natura;  "  and  the  "  lex  divina  "  had  with 
Pufendorf  a  definite  meaning,  and  the  "  publica  utilitas  ",  the 
"  salus  reipu])lic8e  ",  is  the  foundation  and  at  the  same  time  a 
limitation  of  the  absolute  power  of  the  State.  Nevertheless,  the 
dangerous  point  of  this  principle,  which  otherwise  would  so  readily 
lead  to  the  theory  of  the  sovereignty  of  the  people,  was  blunted 
by  Pufendorf,  in  that  he  set  forth  a  presumption,  by  virtue  of 
which  the  acts  of  the  power  of  the  State  correspond  to  the  "  salus 
reipublicte." 

This  is  his  point  of  resemblance  to  Hugo  Grotius.  But  unlike 
Grotius,  instead  of  having  the  State  and  law  proceed  from  the 
inner  and  ethical  nature  of  man,  Pufendorf  laid  its  foundation 
merely  upon  the  aspiration  and  need  for  external  adxantage  and 
security,  or  at  any  rate  for  a  certain  imj^rovement.  Thus  he 
substantially  divested  law  of  its  ethical  cliaracter.  On  the  other 
hand,  he  considered  man,  in  the  condition  of  nature,  merely  from 
the  moral  standpoint ;  and  so  it  came  about,  that  while,  to  the 
law,  as  it  was  to  obtain  in  the  State,  an  ethical  character  was 
denied,  the  law  whicli  existed  before  the  State,  or  was  contenij«)- 
raneous  therewith,  was  regarded  as  prevailing  from  the  moral 
point  of  view.^  Thus  the  result  obtained  from  regarding  law  as  a 
moral  duty  was  partially  carried  o\'er  to  the  State  and  to  the  law 

"  VIII,  3,  §  17. 

*  C/.  e.g.  the  investigration  "De  defensione  sui"  (Lib.  II,  c.  5)  and 
"De  jure  necessitatis"  (II,  c.  6). 

407 


§  80]  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Pakt   II 

in  the  State.  So  law  and  morality,  in  spite  of  the  faet  that  Pufen- 
(lorf  seemed  to  deny  their  common  source  and  original  unity,  are 
confused.  It  was  a  mistaken  attitude  on  the  part  of  Hobbes  and 
Spinoza  to  conceive  the  criminal  law  as  a  means  of  chastisement 
(discipline),  and  not  primarily  as  a  protection,  or  (as  it  were)  an 
outer  covering  of  the  otherwise  existing  right,  turned  toward  an 
aggressor.  This  aided  the  omnipotence  of  the  State,  but  departed 
farther  and  farther  from  the  original  starting  point  of  Ger- 
manic law,  which  alone  was  able  to  give  stability  to  the  criminal 
law. 

Value  of  his  Work.  —  Nevertheless,  that  Pufendorf  was  of 
eminent  service  for  the  advancement  of  law,  and  especially  of 
criminal  law,  cannot  be  denied.  Although  he  was  referred  to  by 
Leibnitz  as  "  homo  parum  jure  consultus  et  minime  philosophus  ", 
and  although  his  didactic  and  dialectic  manner  ^  at  times  proved 
quite  barren,  yet,  on  the  other  hand,  he  knew  the  law  applicable 
ill  particular  cases,  and  had  an  interest  in  practical  questions,  — 
both  of  which  elements  are  often  lacking  in  a  philosopher.  His 
discussions  of  responsibility,^  self-defense,  necessity  and  measure 
of  punishment,^  must  have  brought  new  life  to  a  judicial  practice 
that  was  ossified  and  clinging  steadfastly  to  authority.  And  in. 
one  important  respect,  as  contrasted  with  Grotius,  one  can  observe 
the  progress  of  the  times.  Pufendorf  rarely  regarded  it  as  neces- 
sary, in  his  investigations  of  criminal  law,  to  have  recourse  to 
theology  or  biblical  history;  while  the  extensive  investigations 
of  Grotius  as  to  whether  his  conclusions  harmonize  with  the  prac- 
tice of  Moses  and  the  Hebrew  judges  and  kings,  make  a  strange 
impression  to-day. 

For  a  long  time  after  Grotius,  Hobbes,  and  Pufendorf,  criminal 
theories  made  no  remarkable  progress,  and,  in  the  1700  s  there 
were  even  attempts  to  revert  from  the  emancipation  from  theology, 
which  these  men  had  accomplished.  Yet,  during  this  period,  there 
were  certain  of  the  more  important  authors  whose  opinions  and 
points  of  view  seem  worthy  of  mention. 

^  Perhaps  it  may  be  of  interest  to  the  adherents  of  the  "Xormen- 
theorie"  ("rule  theory"),  which  is  now  so  popular,  to  learn  that  this 
theory  is  suggested  in  Pufendorf,  VIII,  e.  3,  §§  2,  4.  He  also  says  that 
the  penal  clause  of  the  statute  is  intended  for  the  magistrate,  not  for  the 
criminal.  Cf.  also  Hobbes,  "De  cive",  XIV,  §7,  §23,  who  is  almost 
more  explicit.     However  it  arises  only  incidentally. 

«  Cf.  1,  ec.  4  and  5. 

^  VITT,  c.  3,  §§  18  et  seq.  Little  attention  is  given  to  the  varieties  of 
punishment. 

408 


Chapter  III]      THEORIES   FROM   GROTIUS   TO   ROUSSEAU  [§  81 

§  (SI.  other  Writers.  Locke.  —  Locke,'  like  Ilob'oes,  proceeded 
upon  the  theory  of  a  right  belonging  originally  to  the  individual 
to  revenge  real  or  fancied  wrongs  according  to  his  discretion,  — 
a  right  which,  through  relinquishment,  passed  over  to  the  State. 
Fundamentally  regarded,  criminal  law  and  the  right  of  self-preser- 
vation appear  to  him  to  be  identical ;  therefore  the  purpose  of 
punishment  is  security,  through  the  reformation  of  the  criminal, 
if  it  can  be  so  obtained,  — ■  if  it  cannot,  then  through  the  death 
penalty.  To  inflict  the  latter  is  in  no  way  difierent  from  the 
killing  of  lions  and  tigers,  whom  every  one  has  a  right  to  hunt. 
The  criminal  (and  this  reminds  one  of  the  later  theory  of  Fichte) 
has  no  reason  to  complain  of  the  punishment.  Ke  has  declared, 
through  his  crime,  that  with  law  and  equity  he  is  not  concerned, 
and  also  that  every  restriction  is  removed  which  protected  him 
from  violence  and  injustice.-  For  this  reason,  the  amount  of 
punishment  is  determined  merely  by  the  conscience  of  the  party 
inflicting  the  same.  However,  there  is  no  absolute  obligation  to 
punish ;  a  penalty  can,  if  it  seems  expedient,  be  remitted. 

The  ideas,  from  which  an  actual  advance  of  criminal  law  could 
arise,  lay  in  the  dift'erent  utilitarian  purposes  of  punishment,  which, 
however,  portray  in  proper  order  and  in  a  correct  relationship, 
the  absolute  principle  of  justice  regarded,  as  it  were,  from  the 
other  side.  The  absolute  theory  (which  does  not  include  relative 
theories)  stands  essentially  for  continuity  of  purpose,  —  at  any 
rate  it  operates  as  a  warning  to  change,  in  case  criminal  law  and 
its  theories  start  upon  a  false  path  or  are  led  astray  in  following  out 
a  relative  theory. 

Leibnitz.  —  Historically  speaking,  little  influence  has  been  exer- 
cised by  the  ideas  of  Leibnitz,  which  appear  scattered  throughout 
his  "  Theodicee."  Leibnitz,^  in  his  fundamental  idea,  reminds 
one  of  Plato.  To  Leibnitz,  as  to  Plato,  reward  and  punishment 
seem  to  be  part  of  a  principle  of  harmony  governing  the  entire 
world,  and,  as  externally,  so  internally  in  the  criminal  himself, 
the   punishment   restores   the   obscured    predominance   of    ideas 

1  "On  Government"  (London,  1690),  II,  especially  §  87.  Cf.  Laislner, 
pp.  72  el  seq.  ^  §  8. 

•^  "Nouveaiix  essais  de  theodicee",  I,  c.  2  (ed.  Erdmann,  I,  p.  215  b), 
I,  70,  71,  73,  74  (Werke,  ed.  Erdmann,  I,  pp.  521  el  seq.).  1,  73  says  as  to 
punishment:  "un  rapport  do  eonvonance  qui  fontcnto  non  souloment 
I'offense,  mais  encore  les  Sages  qui  hi  voient  coiiunc  une  I)t'ne  niusique  on 
bien  une  bonne  architecture  contento  h>s  esprit  bien  faits."  74:  "... 
Dieu  a  etabU  dans  I'Univers  une  connexion  entre  la  peine  ou  la  recompense 
et  entre  la  mauvaise  ou  la  bonne  action." 

409 


§S1)  HISTORY    OF   THE   THEORIES    OF    CRIMINAL    LAW       [Paut   II 

divinely  implanted.  Naturally  this  leads  to  the  purpose  of  refor- 
mation. But  Leibnitz  does  not  entirely  abandon  the  prineiple  of 
deterrence.  He  says,  however,  that  it  must  be  harmonized  with 
the  purpose  of  reformation.  As  with  Plato,  however,  everything 
is  subjected  to  an  absolute  theory.  Satisfaction  ("  Genug- 
thuung  "),  which  is  dependent  for  its  meaning  upon  the  accept- 
ance of  freedom  of  the  will,  is  the  primary  element ;  *  and  justice, 
according  to  Leibnitz,  does  not  rest  upon  the  possibly  changing 
needs  and  opinions  of  mankind.  A  deeper  insight  is  shown  by 
that  passage  in  which  Leibnitz  points  out,  as  one  of  the  most  effec- 
tive means  of  punishment,  the  general  scorn  of  the  community 
towards  the  criminal,  and  he  compares  this  especially  with  excom- 
munication among  the  early  Christians.''  This  is  not  far  removed 
from  the  principle  that  punishment  may  conceivably  be  something 
other  than  an  external  evil. 

Cocceji.  —  Samuel  von  Cocceji's  "  Theory  of  Lidemnity  "  ^ 
(which  likewise  exercised  little  influence),  based  upon  the  opinion 
that  a  wrong,  in  addition  to  a  material  injury,  also  created  an 
ideal  injury,  and  that  this  must  be  rectified  by  the  penalty,'^ 
was  founded  upon  a  divine  dispensation  of  things.  Yet  it  is 
quite  peculiar  in  this,  viz. :  that  punishment  is  regarded  as  neces- 
sary for  the  preservation  of  the  right  ordained  for  the  individual 
and  the  authorities  of  the  State  (including  the  right  to  obedi- 
ence), and  that  the  absolute  theory  was  practically  debased  into 
the  old  and  oft-repeated  consideration  of  expediency.^  Simple  in- 
demnity, in  case  of  an  offense,  does  not  suffice,  since,  in  that  case 
no  one  would  suffer  from  having  committed  an  offense,  and  there 
would  thus  be  incitement  towards  the  commission  of  wrongful  acts. 

The  "  lex  talionis  "  appeared  to  Cocceji  essentially  the  correct 
form  of  punishment,^  and  the  existence  of  a  wrong  presupposes 
the  violation  of  a  right.  But  the  jurist  felt  obliged  to  modify  the 
idea  of  the  "  lex  talionis  "  into  the  idea  of  an  evil  of  equal  impor- 

*  Cf.  I.e.,  I.  74. 

^  "Nouveaux  essais  sur  rentendement  humain",  II,  c.  28. 

^  "  Introductio  ad  Henriei  de  Cocceji  Grotium  iUustratum "  (1751), 
diss.  XII. 

'  L.C.,  §  555. 

^  This  was  conformed  to  by  Cocceji  from  the  very  beginning. 

^  §  554  :  "Sane  talio  non  intelligi  potest  de  retribuendo  ejusdem  generis 
modo.  .  .  .  Sed  tantundem  illud  sestimationem  recipit.  at  cujus  aliquid 
pensamus  cum  aliis  rebus  vel  factis  qu.^e  sunt  vel  ejusdem  quantitatis  vel 
qualitatis."  Cf.  §  561,  n.  8;  The  death  penalty  is  also  justified  (accord- 
ing to  the  prineiple  of  the  "talio"):  "si  tanta  est  malitia  ut  spes  euni 
meliorem  fieri  posse  nulla  supersit."  "Arbitrio  judicantis  definitio 
talionis  reservata  est." 

410 


Chapter  III]      THEORIES   FROM   GROTIUS   TO    ROUSSEAU  [§  81 

tance.^''  Thus  it  becomes  as  pliant  as  wax  and  as  elastic  as  rubber  ; 
and  by  the  maxim  that  every  act  that  is  contrary  to  a  statute  or 
the  command  of  a  superior  is  also  a  violation  of  a  rio;ht  (namely, 
the  right  to  obedience"),  everything  can  be  justified.  The  dis- 
tinction between  law  and  morality  is  often  confused,  since  the 
violation  of  a  right  is  presumed,  unless  the  law  expressly  gives 
to  a  person  the  privilege  of  acting  in  the  maimer  in  question. 

Thomasius  and  Wolff.  — ^  The  legal  phil()S()j)luTs  and  jurists  who 
preceded  Beccaria,  and  sought  to  found  criminal  law  upon  a  relative 
theory,  contributed  just  as  little  to  the  advancement  of  the  cause. '- 

Thomasius  reproduced,  in  the  short  remarks  which  api)ear  in 
his  "  Fundamentes  juris  natura?  et  gentium  ",  the  theories  of 
Pufendorf.  Expiation,  insofar  as  it  is  undertaken  by  men,  he 
<lesignates  as  "  crudelitas."  "  Assecuratio  "  and  "  emendatio  " 
appear  to  him  to  be  the  goal  of  punishment ;  but  he  chiefly  em- 
phasizes the  latter,  and  compares  punishment  especially'  with 
medicine,  which  must  be  dili'erently  aj)i)lied  according  to  the  time 
and  circumstances.  Nevertheless,  and  in  spite  of  the  fact  that 
Thomasius  had  striven  so  often  against  the  theologians,  he  has 
recourse,  in  some  passages,  to  the  ban  of  theology,  since  he  is  of 
the  opinion  that,  for  certain  offenses,  the  punishment  is  fixed 
through  "  jus  divinum." 

Christopher  Wolff  proceeded  consistently.^^  He  believed  that 
no  act  deserves  punishment  as  a  consequence  of  its  own  nature. 
The  only  purpose  of  punishment  should  be  the  warding  ofl"  of 
injury  from  the  individual  and  from  the  legal  community  ("  Salus 
reipublicse  suprema  lex  esto  !  ").  It  is  worthy  of  mention  that, 
in  Wolff,  there  is  clearly  apparent  the  relation  of  punishment  to 
the  protection  afforded  by  law.  There  should  be  no  punishment 
on  account  of  an  act  that  is  only  meditated  ("  actus  internus  ") ; 
punishment  may  be  based  only  upon  an  injury  ("  Inesio  ").     The 

1"  §  521.  Thus,  especially,  tlio  punishment  of  suieide  was  justified, 
since  no  one  had  a  ri^ht  over  Iiiinseli",  except  for  liis  own  niaintenaiiee. 
C/.  also  X I ,  §  27  :  "Prineipiuni  juris  naturalis  est  voluntas  Creatoris  .  .  . 
Omnis  autem  ilia  voluntas  hae  jjenerali  propositions  eontinetur,  ut  creatura9 
ratione  prteditae  'Jus  suum  euique'  tril)uat." 

"  Cf.  §  5i;i,  c.  4. 

'-  The  enumeration  in  Leyscr,  "Medit.  Sp."  (ilO.  n.  1,  of  the  six  difTer- 
ent  purposes  of  punishment  sounds  almost  comieal :  "1.  satisfaetio 
Itesi,  2.  pensatio  mali  cum  malo,  3.  enuMulatio  malifici,  4.  detractio  virium 
nocendi,  ß.  terror  aliorum,  0.  incrementum  rei  publica\  aut  alia  rei 
publica'  utilitas  .  .  .  perfectissima  .  .  .  pa?na  est,  per  quam  omnes  istio 
lines  simul  ol)tinentur." 

"  "  Institutiones  juris  naturae  et  gentium"  (1754),  §§  9.'{,  157,  410,  758, 
809,  1043  et  seq. 

411 


§81]  HISTORY    OF   THE    THEORIES   OF    CRIMINAL   LAW      [Paut    II 

iustification  of  punishment  as  toward  the  criminal  is  thus  based 
upon  the  violated  right,  and,  from  the  point  of  view  of  the  State, 
is  based  upon  the  "  Salus  reipublicse." 

Rousseau.  —  One  cannot  call  what  little  is  found  in  Rousseau  ^* 
a  real  theory  of  the  basis  of  criminal  law.  Rousseau  merely 
endeavored  to  reconcile  that  punishment  which,  whether  good  or 
evil,  he  was  obliged  to  regard  as  practically  indispensable,  with 
his  theory  of  the  absolute  freedom  of  the  individual,  —  a  freedom 
upon  which  not  even  the  State  might  infringe.  He  accomplished 
it  in  this  way,  namely,  that  he  considered  the  crime  as  a  breach 
of  a  contract  which  gave  to  the  State  the  right  of  war  and  defense 
against  the  individual.  Yet  there  was  connected  herewith  another 
fundamental  principle  which  bases  punishment  upon  the  will  of 
the  criminal ;  and  it  is  in  connection  with  this  second  fundamental 
principle  that  Rousseau,  under  certain  circumstances,  would 
require  that  the  individual  be  sacrificed  for  the  State.  According 
to  Rousseau's  view,  every  one  assumes  the  risk  that  the  State 
may  say  to  him,  that  it  is  necessary  that  he  die  for  the  sake  of  the 
State.  It  is  certainly  true,  that  Rousseau  abandoned  the  purpose 
of  deterrence  in  punishment ;  —  also  that  he  observed  something 
of  worth  even  in  the  basest  individual,  —  yet  the  maxim  that  one 
has  the  right  to  kill  any  one  who  cannot  be  allowed  to  live  with- 
out danger,  entirely  releases  the  conception  of  punishment  from 
its  historical  and  ethical  bases,  and  makes  it  expansive  as  rubber. 
It  has  been  seen  how  the  fairest  theories  of  humanity  and  nobility 
were  able  to  justify  themselves  in  the  French  Revolution  under 
the  plea  of  necessity.  Necessity,  measured  solely  by  concrete 
circumstances,  gave  rise  to  the  theory  of  extraordinary  legisla- 
tion and  despotism.^^  And  yet  it  is  still  more  questionable,  if 
one  proceeds  (as  Rousseau  certainly  did  not  do  with  any  degree 
of  precision)  upon  the  basis  that  crime  consists  not  so  much  in 
the  violation  of  a  right  as  in  disobedience.  In  the  case  of  viola- 
tions of  a  right,  one  is  traditionally  rather  accustomed  to  fixed 
degrees  of  punishment,  —  yet  a  fervid  imagination  is  able  to 
deduce,  from  every  act  of  intentional  or  actual  disobedience,  the 
overthrow  of  the  State,  and  therewith  the  need  for  repression 
"  ä  outrance  "  by  means  of  the  criminal  law. 

1^  "Contrat  social"  (1762),  II,  ch.  5. 

15  Along  with  this  there  are  occasionally  profound  and  correct  observations. 
Thus,  in  the  "Discours  surl'origine  de I'inegalite"  ("CEu\Tes",  ed.  Musset- 
Pathay,  Paris,  1823,  I,  p.  281),  he  states  that  in  the  initial  stages  of  legal 
development  every  violation  of  a  right  was  conceived  as  a  personal  injury. 

412 


Chapter  IV 
CRIMINAL  THEORIES  FROM  BECCARIA  TO  FEUERBACH 


§82. 


§83. 
§84. 


Becearia.  Defects  and 
Merits  of  Beccaria's  Work. 
Later  Writers.     Filangieri. 

Globig  and  Huster. 

Servin.     Wieland. 


§  85.     Kant. 

§  86.     Fichte. 

§  87.     Grolmann.        The      Special 

Prevention  Theory. 
§  88.     Feuerbach. 


§  82.  Becearia.  —  The  famous  book  of  Cesare  Becearia  "  Dei 
delitti  e  delle  pene  "/  in  its  day  so  influential,  is  in  these  times 
often  rather  unfavorably  criticized.^  And  if  one  applies  to  its  theo- 
retic basis  the  criterion  of  absolute  consistency  and  exactitude, 
mam'  objections  can  be  raised,  —  even  if  one  ignores  the  lack  of 
historical  attitude,  and  also  that  superficial  and  perverted  opinion 
(yet  shared  by  so  many  in  tlie  past  century)  that  criminal  law  could 
and  must  be  without  a  scientific  interpretation.  The  theory  of 
Becearia  founded  the  State  and  law  upon  a  contract.  It  reminds 
one  of  Hobbes  in  that  it  assumes  the  establishment  of  security  as 
the  motive  for  the  making  of  the  contract.  His  position,  however, 
dift'ers  from  that  of  Hobbes  in  this,  —  that  while  Hobbes  offered 
the  entire  freedom  of  the  individual  as  a  sacrifice  to  the  so\ereign 
power,  Becearia  proceeded  upon  the  principle  that  there  was  but 
a  small  portion  of  the  individual  freedom  which  needed  to  be  i)ai(l 
as  a  price  for  the  security  ofi'ered  by  the  law.  In  addition  to  this, 
according  to  Becearia,  in  order  that  the  individual,  yielding  to  his 
selfishness,  may  not  enjoy  both  his  own  freedom  and  encroach  u\)im 
that  of  others,  a  larger  part  of  his  freedom  is,  as  it  were,  placed  in 
pledge,  —  to  be  confiscated  by  the  State,  if  an  attack  is  made  upon 

1  First  published  in  1764. 

2  Cf.  Janet,  II,  p.  412.  Lnütuer,  pp.  02  et  seq.  Fnustin  Ilelic  in  his 
(faulty)  French  translation  of  the  writings  of  Becearia  (2d  ed.,  Paris. 
1870,  with  introduction  and  notes),  overestimates  the  services  of  Bec- 
earia. Beccaria's  ideas  are  almost  entirely  not  original.  A  correct 
appraisement  is  given  by  Glaser  in  the  preface  to  his  excellent  German 
translation  (2d  ed.,  1876). 

413 


§  82]  HISTORY    OF   THE   THEORIES    OF    CRIMINAL    LAW      [Part    II 

that  portion  of  freedom  guaranteed  to  others.  This  pledge  lays 
the  basis  for  punishment,  —  the  purpose  of  which  is  security  ob- 
tained by  deterrence, .  since  a  crime  either  violates  or  endangers 
the  rights  of  others.  In  other  words,  it  is  the  fiction  of  the  consent 
of  the  criminal  on  one  side  and  on  the  other  the  principle  of  the  ne- 
cessity or  inevitableness  of  punishment,  to  which  Beccaria  has  re- 
course. But  the  lack  of  truth  in  the  fiction  that  the  individual  has 
agreed  to  have  himself  offered  up  as  a  victim  for  the  purpose  of 
deterring  others  is  to-day  apparent,  —  and  the  more  so,  since, 
both  in  Beccaria  (as  well  as  later  in  Feuerbach),  the  deterring  ele- 
ment rests  not  so  much  in  the  threat  contained  in  the  statute,  as  in 
the  carrying  into  effect  of  the  punishment. 

Defects  and  Merits  of  Beccaria's  Work.  —  The  weakness  of  the 
argument  ^  is  especially  apparent  in  its  theoretical  objections  to  the 
death  penalty^  (Beccaria,  however,  availed  himself  of  other  and 
more  correct  bases,  learned  from  experience) .  Beccaria  was  of  the 
opinion  that  the  individual  could  not  have  conceded  to  the  com- 
munity the  right  to  put  him  to  death,  —  since  this  right  was  not 
his  to  concede.  This  argument  obtains  equally  against  all  punish- 
ment, except  possibly  mere  confiscations  of  property  by  virtue  of  a 
fine,^  —  and  the  terrible  punishments  by  way  of  imprisonment, 
which  he  would  substitute  for  the  death  penalty,  and  which  pres- 
ently found  practical  expression  in  the  Austrian  Code  of  Joseph  II, 
were  in  reality  worse  than  death. 

Nevertheless,  his  theoretical  foundation  was  well  suited  to  es- 
tablish a  truth  upon  which  the  reform  of  criminal  procedure,  at 
that  time,  must  turn,  —  and  this  explains  the  extraordinary  con- 
sequences of  the  book  and  its  opinions.  The  method  of  dealing 
out  criminal  justice  in  the  middle  of  the  1700  s  was  naturally  open 
to  the  reproach  that  it  exhibited  a  revolting  prodigality  in  its 
punishments,  — in  other  words,  in  its  dispensation  of  human  misery, 
—  and  that  these  penalties  by  no  means  achieved  adequate  results. 
What  Beccaria  did  was  not  so  much  to  lay  a  foundation  of  criminal 

3  Cf.  Glaser,  pp.  10,  11. 

*  C.  16.  He  would,  however,  under  exceptional  conditions,  not  en- 
tirely reject  the  death  penalty  as  an  extreme  means  for  attaining  safety. 
He  regarded  the  death  penalty  as  a  kind  of  relapse  into  the  condition  of 
warfare. 

=  Cf.  Glaser,  pp.  69,  70.  Beccaria,  however,  believed  that  imprisonment 
of  long  duration  had  more  effect  upon  the  one  observing  it  than  upon  the 
convict  himself  (?).  Thus  there  are  in  him  traces  of  the  idea  of  an 
appearanee  of  punishment.  The  idea  that  imprisonment  should  be 
made  as  terrifying  as  possible  in  external  aspects  (e.g.  through  the  ap- 
pearanee of  prisons)  recurs  in  others. 

414 


Chapter   IV]       THEORIES    FROM   BECCARIA   TO    FEUERBACH  [§  82 

law  as  to  emphasize  its  limitations.  According  to  his  argument, 
only  those  acts  should  be  punished  which  were  dangerous  to  the 
State  and  relatively  to  others.  Only  so  much  punishment  should 
be  inflicted  as  was  absolutely  indispensable  for  deterrence.''  The 
State  has  the  duty  to  prevent  crimes  ^  by  means  other  than  punish- 
ment, and  has  to  consider  whether  or  not  some  other  means  would 
serve  this  end  better,  and,  accordingly,  whether  or  not  it  would  be 
better  in  many  cases  if  punishment  were  given  up.  These  princi- 
ples are  undoubtedly  correct;  and  Beccaria  used  them  to  assail 
a  countless  number  of  grave  abuses  in  the  criminal  law  and  the 
criminal  procedure,  —  abuses  such  as  torture,  the  disgraceful  con- 
ditions of  the  prisons  in  which  suspects  were  detained,  the  long 
duration  of  the  trials,  the  lavish  infliction  of  the  death  penalty, 
the  cruel  punishments  tending  to  harden  the  sensibilities,  the  in- 
fliction of  severe  penalties  for  offenses  entailing  little  danger, 
confiscation,  etc.  In  this  consisted  his  indisputable  and  never  to 
be  forgotten  service,  —  as  all  concede.  He  also  recommended 
the  greatest  possible  celerity  of  punishment. 

It  is  self-evident  that  such  a  theory  was  opposed  to  the  concep- 
tion of  punishment  inflicted  by  the  State  as  a  pouring  out  of  divine 
justice,  and  to  the  conception  of  crime  as  sin.^  In  this  respect,  to 
be  sure,  his  writings  contributed  nothing  new.  But  the  subject 
had  never  been  so  popularly  presented.  Although  Beccaria  made 
no  attempt  to  harmonize  his  relative  theory  with  an  absolute  basis 
of  criminal  law,  yet  the  noble  enthusiasm  of  its  author  and  the  mas- 
terly language  in  which  the  book  was  written,  permits  the  reader 
to  assume,  as  it  were,  that  an  absolute  principle  could  be  found, 
behind  his  principle  of  the  general  utility,  of  the  greatest  possible 
happiness  of  the  many.^ 

Later  Writers.  Filangieri.  —  As  a  result  of  Beccaria's  writings, 
there  arose  the  view  that  punishment  by  the  State  and  divine 
justice  are  not  identical,  and  this  apparently  became  the  general 
view  of  the  educated  classes,  of  legislators,  and  of  prominent  ju- 

^  The  punishment  must,  however,  exceed  in  value  the  benefit  which 
the  criininal  anticipates  from  the  crime  (c.  15). 

'  This  principle  to  be  sure  is  rather  crudely  expressed  in  c.  13.  But 
Beccaria  does  not  openly  accept  it  in  the  sense  so  sharply  criticized  by 
Laistner,  p.  98,  that  the  State  may  punish  only  if  it  has  previously  ex- 
hausted all  means  to  anticipate  the  crime,  —  a  principle  which,  scientifi- 
cally considered,  would  necessarily  lead  to  the  suppression  of  criminal 
justice. 

8  However,  in  e.  25,  Beccaria  would  maintain  the  connection  between 
criminal  law  and  morality  in  the  determination  of  punishable  acts. 

»c.  1. 

415 


§  82]  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Part  II 

rists.'°  The  theory  of  retribution  was  virtually  abandoned,  until 
it  was  again  habilitated  by  Kant.  The  Austrian  jurist,  \'on 
Sonnenfels,^^  a  jurist  of  great  merit,  speaks  as  follows  :  "  Through 
a  kind  of  tradition,  an  explanation  of  punishment  has  intruded  into 
jurisprudence,  which  is  more  ingenious  than  correct:  an  injury 
to  the  feelings  because  of  the  wickedness  of  the  act."  He  also  ^^ 
rejects  the  definition  of  Hugo  Grotius. 

Filangieri  ^^  considers  it  no  longer  necessary  to  refute  the  basis 
of  criminal  justice  as  resting  upon  divine  or  human  retribution.'* 
To  him,  punishment  is  reparation  for  the  breach  of  contract  implied 
by  the  crime,^^  and  this  reparation  can  only  consist  in  security  from 
the  individual  offender  and  a  destruction  of  the  influence  which 
the  bad  example  can  have  upon  others.  Thus  Filangieri's  theory 
consists  of  an  uncertain  and  vague  commingling  of  the  so-called 
"  special  prevention  "  theory  and  the  theory  of  "  deterrence  " 
(deterrence  by  the  infliction  of  the  punishment)  .^^  There  is  no 
mention  of  a  justification  of  criminal  law  from  the  viewpoint  of 
the  criminal.  The  extravagant  results  of  deterrence  are  rejected 
only  by  appeal  to  the  necessary  observance  of  humanity.  It  de- 
serves mention,  however,  that  Filangieri  has  more  of  the  historical 
sense  than  e.g.  Beccaria  and  others,^'  and  that  he  by  no  means  repre- 
sents the  unlimited  omnipotence  of  the  State.  His  arguments 
concerning  the  range  of  punishable  acts  have  even  to-day  a  claim 
to  recognition.  He  is  as  far  removed  from  confusing  law  and  moral- 
ity, as  he  is  from  denying  that  they  have  any  relation,  and  in  this 

1"  The  theory  of  divine  and  relatively  moral  retribution  was  yet  main- 
tained, e.g.  in  1744  by  the  Professor  of  theology  and  philosophy,  Crusius 
in  his  "  Anweisung  vernünftig  zu  leben  "  (3d  ed.,  1766),  and  by  the  philos- 
opher Baumgarten  ("Metaphysik",  Halle,  1757).  As  to  this  cf.  Hepp, 
I,  pp.  15-21. 

""Grundsätze  der  Polizei-,  Handlungs-  und  Finanzwissenschaft", 
Part  I  (3d  ed.,  1777),  p.  335. 

^-  Von  Sonnenfels'  own  ideas  as  to  the  basis  of  criininal  law  are  unim- 
portant. He  represents  an  inconsistent  and  vague  theory  of  deterrence 
and  at  the  same  time  the  idea  of  humanity  in  criminal  law. 

"  In  his  famous  work  "Scienza  deUa  legislazione",  first  published  in 
Naples,  1780-1785. 

"  Cf.  " Introduzione  za  Libro  III"  (Vol.  I,  p.  86  of  the  Florentine  edi- 
tion of  1820),  and  III,  cc.  25  et  seq. 

1^  "11  delitto  non  e  altro  che  la  \dolazione  d'un  patto." 

1^  How  far  should  the  principle  of  security  and  how  far  should  the 
principle  of  making  an  e.xample  e.xtend  ?  There  are  many  cases  in  which 
the  former  principle  would  be  satisfied  when  the  latter  woidd  require 
something  additional,  and  vice  versa. 

"  Filangieri  had  e.g.  apparently  correct  conceptions  of  the  historic 
origin  of  criminal  law.  According  to  his  view,  it  was  only  after  the  lapse 
of  some  time  that  criminal  law  was  transferred  to  the  State.  To  this 
e.xtent  his  theory  can  not  be  designated  a  relative  one. 

416 


Chapter  IV]      THEORIES   FROM   BECCARIA  TO   FEUERBACH  [§  83 

respect  he  assumes  a  higher  and  more  correct  attitude  than  Feuer- 
bach. 

§  83.  Globig  and  Huster.  —  Of  far  more  superficial  and  (from 
to-day's  viewpoint)  almost  intolerable  character  is  that  abortive 
treatment  which  the  views  of  Beccaria  received  in  the  treatise  of 
Globig  and  Huster,  "  IJber  die  Criminalgesetzgebung  "  (1783),  — 
a  treatise  famed  in  its  time  and  awarded  a  prize  for  merit.  The 
book  deserves  mention,  however,  because  its  authors  for  the  first 
time  worked  out  a- theory  of  criminal  law  as  a  preliminary  to  legis- 
lative action.  While  both  authors  evinced  their  hostility  towards 
"  visionary  appeals  to  a  divine  law  "  for  justification,  yet  they 
themselves  grouped  together  a  number  of  theories  for  punishment 
(compensation,  retribution,  deterrence,  reformation)  without  any 
attempt  whatsoever  to  determine  which  should  be  given  prece- 
dence. They  were,  however,  chiefly  influenced  by  the  ideal  of 
deterrence  (although  at  times  this  was  obscurely  combined  with  the 
ideal  of  retribution).^  And  they  even  went  so  far  in  this  as  to 
recommend,  in  spite  of  the  improving  practice  of  the  times,  steps 
manifestly  contrary  to  progress.  Thus,  for  example,  they  recom- 
mended insulting  treatment  of  the  offender's  dead  body,  if  he  could 
not  be  caught  alive,  and  even  mutilation  by  the  cutting  off  of  the 
tongue,^  although  only  in  exceptional  circumstances.  Naturally 
nothing  is  said  of  a  foundation  of  criminal  law  from  the  view- 
point of  the  offender.  The  book,  indeed,  expounds  many  correct 
views ;  it  asserted  that  a  punishment  that  is  necessary  is  also  justi- 
fiable; that  the  legislator  should  not  confuse  offenses  that  are 
criminal  and  those  which  are  merely  violations  of  police  regulations ; 
that  punishment  is  not  to  be  founded  upon  a  contract  with  the 
criminal  (and  that  for  this  reason  the  propriety  of  capital  punish- 
ment cannot  be  contested).  But  it  also  contains  pernicious 
juristic  blunders.  Thus,  for  example,  there  is  a  complete  con- 
fusion of  the  conception  of  "  dolus  "  and  "  culpa  "  {i.e.  malicious 
intent  and  negligence).  There  are  also  principles  which  onl\-  the 
most  shallow  understanding  could  admit,^  and  throughout  there  is 
an  absolutely  unrestrained  and  arbitrary  application  of  the  maxim  : 
"  Salus  reipublicse  suprema  lex  esto."  "*    One  would  be  inclined  to 

1  Cf.  e.g.  pp.  7.3,  85.  "  Cf.  p.  7.3. 

3  E.g.  should  the  notion  of  honor  be  merely  subjective?  p.  124. 

^  Thus  the  severest  penalties  were  recommended  for  persons  who 
preached  new  religions  in  the  State  (p.  254).  The  authors  also  expressed 
themselves  in  favor  of  punishments  by  imprisonment  that  were  truly 
barbarous  (p.  168). 

417 


§  84]  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Pakt   1 1 

wonder  at  the  influence  exercised  })y  this  writing,  if  there  had  not 
been  such  frequent  repetitions  of  such  things  in  scientific  writings. 
Acknowledgment  siiould  be  made,  however,  of  the  suggestion  as 
to  the  need  of  making  the  criminal  law  more  definite  and  more 
suited  to  the  times.'^ 

§  84.  Servin.  —  Beccaria's  ideas  as  to  the  necessity  of  punish- 
ment were  transformed,  in  the  treatise  of  Servin,  into  a  formal 
theory  of  self-defense.  This  treatise  ^  was  originally  written,  in 
competition  with  that  of  Globig  and  Huster,  for  the  prize  offered 
by  the  Society  of  Economics  at  Berne.  Servin  regarded  criminal 
law  merely  as  the  individual's  natural  right  of  self-defense  trans- 
ferred to  the  State.  Just  as  the  individual,  in  the  state  of  nature, 
can  render  himself  secure  against  a  repetition  of  an  attack  by  slay- 
ing his  aggressor,  so,  later,  the  State  may  do  the  same  thing  by  means 
of  punishment.  According  to  this,  by  virtue  of  the  presumption 
(incorrect,  however)  that  the  criminal  would  repeat  the  crime  he 
had  perpetrated,  one  would  necessarily  expect  security  against  the 
individual  criminal  to  be  the  purpose  of  punishment.  But,  regard- 
less of  the  fact  that  self-defense  can  have  reference  only  to  the 
aggressor  and  not  to  third  parties,  the  author  gives  especial  promi- 
nence to  the  deterrence  of  others.  The  logical  deduction  from  the 
theory  of  deterrence,  viz.,  that  the  degree  of  the  punishment  should 
depend,  not  upon  the  importance  of  the  punishable  act  but  rather 
upon  the  strength  of  the  inducement  to  commit  the  act,  which 
is  often  stronger  in  minor  oflFenses  (e.g.  thefts  when  opportunity 
presents  itself),  is  avoided  (as  later  by  Feuerbach)  by  a  second 
infringement  of  logic;  for,  while  quite  openly  recognizing  this 
deduction,^  he  says  it  is  not  in  accord  with  experience.  There 
is  absolutely  nothing  to  be  said  in  defense  of  the  logic  of  this  once- 
renowned  commentator.  While,  for  example,  like  Beccaria, 
he  approves  the  greatest  possible  restriction  of  punishment  and 
makes  the  pathetic  appeal,  "  Spare  the  liberty  of  the  citizen  'V 
he  has  not  the  slightest  scruple  against  asserting  an  extensive  duty 
to  inform  on  others,  and  advocating  punishment  of  the  party  in- 

^  The  principle  of  deterrence  in  accordance  with  the  maxim:  "Salus 
reipublicae  supreraa  lex  esto"  appears  in  a  more  moderate  manner  in 
Gmelin,  "Grundsätze  der  Gesetzgebung  über  Verbrechen  und  Strafen", 
1785.^ 

1  "De  la  legislation  criminelle,  memoire  fini  en  1778,  envoye  a  la 
societe  Economique  de  Berne  1778  et  retire  du  eoncours  1782.  Avec 
des  considerations  .  .  .  par  Iselin,  Secretaire  d'Etat  de  la  republique  de 
Basle"  (Basel,  1782). 

2  Cf.  pp,  27,  28.  3  Cf.  I,  4  and  p.  265. 

418 


Chapter   IVJ      THEORIES    FROM    BECCARIA   TO    FEUERBACH  [§84 

jured  by  the  crime,  in  case  of  his  failure  to  lodge  complaint  of  the 
crime/  and  urging  the  punishment  of  emigration.''  While  he  re- 
jects the  death  penalty  (but  primarily  for  the  reason  that  it  does  not 
sufficiently  deter),  he  favors  the  widest  range  of  corporal  punish- 
ment, and  even  those  punishments  by  mutilation  which  the  prac- 
tice of  his  time  had  abandoned.  The  application  made  by  Servin 
of  the  distinction  between  "  droit  naturel  "  and  "  droit  conven- 
tionnel  "  is  also  remarkable.  Infringements  of  the  former  he 
regards  as  "  crimes  "  {i.e.  oflFenses  of  a  graver  character),  while 
infringements  of  the  latter  are  merely  "  delits  "  {i.e.  offenses  of 
less  grave  character). 

Here,  for  the  first  time,^  we  meet  this  classification  of  punish- 
able acts,  which  later  became  so  important,  —  but  he  is  unfortu- 
nate in  the  application  of  his  classification.  Life,  health,  and  free- 
dom belong  to  natural  law ;  the  "  droit  conventionnel  "  consists 
of  that  which  results  from  the  "  contrat  social  ",  and  herein  is  also 
included  property,  since  the  State  apportions  property (  I)  ;  "  con- 
sequently theft  is  never  a  "  crime  ",  but  only  a  "  delit."  ^  As  to 
punishment,  he  derived  from  the  conception  of  the  "  droit  conven- 
tionnel "  the  principle  that  a  death  penalty  or  a  sentence  to  life 
imprisonment  should  never  be  inflicted  for  a  "  delit  ",  since  no  one 
can  enter  into  a  contract  extending  to  another  the  right  of  slaying 
him  or  depriving  him,  for  life,  of  his  freedom.'-'  Together  with  these 
useful,  although  mistaken,  attempts  to  distinguish  the  various  kinds 
of  punishable  acts,  there  appears  a  considerable  confusion  of  law 
and  morality.  Servin  quite  correctly  recognized  that  gra\"e  crimes 
are  always  also  violations  of  the  laws  of  morality.^"  But  he  com- 
mitted the  error  of  deducing  legal  maxims  directly  from  the  moral 
law.  And  as  a  result  of  the  interchanging  of  law  and  morality, 
he  characterized  "  dolus  "  as  "  intent  to  injure  "  ("  en\ie  de 
nuire"),— a  conception  which  later  became  seriously  harmful, 
in  many  respects,  for  French  administration  of  justice. 

Wieland.  — The  extent  to  which  the  maxim  "  Salus  reipublica' 
suprema  lex  esto  "  can  lead  to  a  disregard  of  the  experiences  of 

^  P.  24 ;   cf.  p.  367. 

»  P.  27,5. 

^  The  words  "crime"  and  "delit"  were  used  intorohangfoalily  prior  to 
the  legislation  of  the  period  of  the  French  Revolution.  (\f.  Schaffner, 
"Geschichte  der  Rechtsverfassunt!:  Frankreichs",   III,  p.  440. 

'  However,  this  argument  was  used  primarily  for  the  |)urpose  of  op- 
posing the  death  penalties  which  then  were  so  often  inllicted  for  simple 
theft. 

8  P.  298.  «  P.  179.  "  P.  91. 

419 


§  84]  HISTORY   OF   THE   THEORIES   OF   CRIMINAL   LAW      [Part   II 

history,  is  remarkably  well  illustrated  in  the  work  of  the  Lei[)zi^ 
professor  of  philosophy,  E.  C.  Wieland,  "  Geist  der  peinlichen 
Gesetze."  Even  to-day  it  is  of  interest.  Although  its  author 
was  not  a  jurist,  he  was  not  without  knowledge  of  juristic  writings, 
and  (perhaps  as  none  other)  he  reflects  the  spirit  of  the  enlightened 
judicial  practice  of  his  time,  though  as  a  matter  of  fact  his  work 
often  gives  us  the  impression  of  being  a  caricature. 

Proceeding  from  natural  laws  (which  he  identifies  unquestion- 
ingly  with  the  mandates  of  morality)  ,^^  Wieland,  like  Servin,  re- 
gards criminal  statutes  as  a  means  to  compel  the  observance  of 
natural  laws,  and  of  those  laws  the  only  purpose  of  which  is  to  pro- 
mote the  welfare  of  the  individual  citizen.  Nevertheless,  the  crim- 
inal law  is  based  upon  the  natural  right  of  protection  ^^  which 
is  transferred  from  the  individual  to  the  State ;  and  from  this 
principle  of  safety  against  the  individual  criminal,  most  of  his 
deductions  for  the  treatment  of  crimes  and  offenses  are  derived. 
A  refutation  of  the  theory  of  W^ieland  on  this  point  need  not  be  made 
here,  since  the  so-called  "  special  prevention  "  ^^  theory,  advanced 
in  a  more  complete  form  by  Grolmann,  succumbed  under  the 
attacks  of  Feuerbach. 

It  is  worthy  of  notice  that  Wieland  had  completely  failed  to 
comprehend  that  the  nature  of  the  right  requires  complete  freedom 
of  action  within  the  right  to  be  conferred  upon  those  acting  justly ; 
and  that,  in  violation  of  this  fundamental  maxim,  he  directly 
limited  the  range  of  the  positive  right  in  accordance  with  the  ulti- 
mate purpose  of  the  progress  of  the  human  race;  and  that,  on 
this  basis,  a  general  intermixture  of  law  and  morality  is  a  char- 
acteristic of  his  work.^*  This  intermixture  of  law  and  morality  took 
especially  the  following  course.  The  essence  of  crime,  according 
to  Wieland,  is  its  "  wickedness  "  ("  Bösheit  "),  i.e.  an  intent  of  the 
criminal  which  is  diametrically  opposite  to  the  laws  of  nature. 
Where  the  criminal  appears  to  have  followed  a  certain  natural 
impulse,  he  has  not  acted  with  complete  "  wickedness  "  and  the 
highest  penalties  of  the  law  can  not  be  inflicted  upon  him.  In 
other  words,  the  principle  of  moral  freedom  is  maintained  as  a  con- 
dition precedent  to  regular  punishment.^^    Where  any  plausible 

"  I,  pp.  5  et  seq. :   p.  102.  "  I,  p.  393. 

"  I.e.  "Special Präventionstheorie." 

"  This  is  especially  prominent  in  the  discussion  of  self-defense  (II, 
p.  136)  and  also  in  the  discussion  of  suicide  and  neglect  of  one's  own 
health  (I,  p.  335). 

'*  I,  pp.  275,  276.  "He  only  can  make  himself  guilty  of  a  crime,  who 
has  knowledge  not  only  of  the  violated  statute,  but  also  is  conscious  of 

420 


Chapter   IV]      THEORIES    FROM    BECCARIA   TO    FEUERBACH  [§  84 

reason  can  be  found  which  induced  the  criminal  to  commit  the 
crime,  there  the  regular  punishment  can  not  be  applied,  and  the 
criminal  must  be  treated  more  leniently.  «So  it  is,  for  example, 
with  a  robber  who  murders  his  victim  because  he  fears  discovery. 
Also,  as  a  further  illustration,  a  false  witness  who  by  his  false  testi- 
mony merely  desires  to  obtain  an  advantage  for  another  or  even 
for  himself  is  not  actually  a  criminal.  Consequently  the  State 
and  the  judge  (in  pursuance  of  most  unsafe  presumptions  and  of 
fundamental  principles  which  in  their  practical  application  conflict 
with  each  other  every  moment)  are  obliged  to  fix  (arbitrarily)  the 
punishment,  i.e.  to  mitigate  it.  But  the  State  and  the  judge,  if 
they  are  sufficiently  convinced  of  the  "  wickedness  "  ^^  of  the  crimi- 
nal, may  also  punish  very  severely.  The  author  who,  in  the  be- 
ginning, seems  so  much  concerned  that  the  State  should  not  punish 
where  no  useful  purpose  would  be  served,  and  who,  in  the  be- 
ginning, argues  that  only  a  violation  of  the  so-called  natural  right 
should  be  a  crime,  is  ready  later  to  designate  as  an  actual  crime 
"  wicked  disobedience"  to  any  law  of  the  State  whatsoever ;  for,'^ 
of  course,  such  disobedience  towards  the  State  will  ultimately  be 
availed  of  to  violate  natural  rights. 

This  is  the  argument  of  despotism,  — an  argument,  indeed,  which 
is  not  scorned  by  a  certain  stupid  liberalism  of  to-day  (one  has  only 
to  substitute  the  word  "  principiell  ",  which  here  has  but  little 
different  meaning,  in  the  place  of  the  word  "  wicked  ",  which  is  no 
longer  in  favor).  Since  every  act  whatever  can  be  "  wicked  " 
and  every  act  can  be  dangerous,  mere  persuasion  leading  to  discon- 
tent in  the  State  can  also  be  a  crime  ;  and  since  the  perfecting  of 
the  individual  is  an  unconditional  duty  of  the  State,  so  the  indi- 
vidual may  be  coerced  by  means  of  punishment. ^^  Thus  we  find 
preached  the  greatest  conceivable  interference  of  the  police  (with 
privilege  of  punishing)  in  the  aft'airs  of  the  individual  and  of  the 
family ;  and  with  such  omnipotence  in  the  power  of  the  State,  is 
inherently  associated  the  doctrine  of  the  limited  intelligence  of  the 

the  fundamental  motives  which  arc  connected  with  its  observance,  and 
in  the  moment  of  transgression  has  sufficient  strenfjftli  to  suppress  every 
motive  and  by  means  of  this  suppression  to  fix  for  himself  an  entirely 
opposite  application  of  his  powers."  Cf.  also  I.  p.  :V.U\.  where  it  is  argued 
that  violent  passion  may  preclude  the  action  of  the  real  s(>lf. 

"■'  "The  deliberate  choice  of  detrimental  acts  is  wickedness  and  every 
wicked  violation  of  a  statute  is  a  crime."  I,  p.  275 ;  II,  p.  109  and  other 
places. 

1^  I,  p.  306. 

'ä  I,  pp.  177  et  seq.;  I,  pp.  250  et  seq.  At  times  even  prizes  and  rewards 
for  good  behavior  are  recommended.     I,  p.  1(35. 

421 


§  85]  HISTORY   OF   THE   THEORIES   OF   CRIMINAL   LAW      [Pakt   II 

subjects. ^^  One  is  forcibly  reminded  of  the  methods  of  the  General 
Code  of  Prussia,  promulgated  a  few  years  after  the  appearance 
of  Wieland 's  work.  That  his  views  were  those  of  many  of  his  time 
is  also  aj)i)arent  from  a  comparison  with  the  "  Draft  of  the  Ba- 
varian Criminal  Code  "  by  Kleinschrod,  which  was  so  ably  criti- 
cized by  Feuerbach.-" 

§  85.  Kant.  —  When  such  errors  were  prevalent,  it  became  a 
matter  of  practical  importance,  on  one  hand,  to  mark  the  distinc- 
tion between  law  and  morality,  and  on  the  other  hand  to  save  the 
law  from  being  completely  reduced  into  mere  considerations  of 
expediency  in  the  individual  case.  A  theory  which  could  under- 
take this  successfully  must  necessarily  create  a  remarkable  impres- 
sion upon  contemporary  thought,  however  striking  may  be  its 
defects  in  other  respects.  This  primarily  explains  the  remarkable 
influence  of  Kant's  theory  of  criminal  law.^ 

Kant  absolutely  denied  to  man  the  possibility  of  knowledge  of 
"  things  in  themselves  "  (truth  in  the  objective  sense) ;  but  (as 
is  well  known)  by  a  rather  daring  mental  leap  he  saved  the  possi- 
bility of  an  ethics  based  upon  the  free  will  of  the  individual.  This 
he  did  by  the  acceptance  of  a  standard  for  practical  action  which 
presupposed  freedom,  God,  and  immortality,  and  was  capable  of 
being  directly  known,  and  was  inviolable.  This  "  categorical 
imperative  "  meant  for  him,  in  criminal  law,  retribution.  Uncon- 
ditional retribution  must  come  upon  the  criminal.      In  this  retri- 

"  I,  p.  147.  "The  citizens  are  usually  too  light-minded  and  unin- 
telligent." "There  must  be  aroused  in  them  a  realization  of  these  restric- 
tions {i.e.  of  natural  freedom)  in  order  to  make  of  them  good  citizens." 

-"  Compare  the  account  of  this  Code,  ante,  Part  I,  §  58.  Wieland 
(I,  p.  406)  says:  "Men  who  are  so  steeped  in  wickedness  that  they  can- 
not live  without  either  actually  undertaking  injurious  acts  or  with  rest- 
less vigilance  await  the  first  favorable  moment  for  the  execution  of  an 
already  planned  injurious  act,  are  beneath  all  reformation  and  nothing 
but  death  is  able  to  effectively  put  a  check  to  their  crime."  The  Bavarian 
draft  (§  129)  says:  "Capital  punishment  shall  be  inflicted  only  upon 
those  guilty  of  high  treason,  murder,  manslaughter,  rebellion  and  in- 
cendiarism, since  criminals  of  this  character  can  not  be  so  guarded  in 
prisons  and  jails  that  immediate  danger  is  avoided :  they  might  regain 
their  liberty  and  again  commit  such  crimes."  §  130.  "Cases  of  this 
character  are  deemed  to  exist,  if  such  criminals  have  so  strong  a  fol- 
lowing that  there  is  reason  to  fear  that  their  adherents  may  set  them 
free  from  the  place  of  punishment  to  which  they  are  brought  or  if  the 
number  of  such  criminals  is  very  large  or  especially  if  an  offender  is  of 
such  a  character  that  any  other  punishment  does  not  suflSce  to  render  the 
state  and  our  other  true  subjects  secure  against  him."  As  to  this,  cf. 
Feuerbach,  "Bibliothek  für  peinl.  Rechtswissenschaft"  (1804),  vol.  II, 
part  3,  pp.  166  et  seq.  The  death  penalty  is  also  incidentally  justified  by 
Wieland  (I,  p.  419)  because  it  made  it  no  longer  necessary  to  feed  in- 
corrigible men  (among  whom  the  murderer  is  not  always  included). 

1  "Metaphysische  Anfangsgründe  der  Reehtslehre",  1797,  pp.  195-206. 

422 


Chapter  IV]      THEORIES   FROM   BECCARIA  TO    FEUERBACH  [§  85 

bution  commanded  by  justice,  no  place  is  left  for  additions 
or  for  modifications  on  grounds  of  expediency.  Upon  it  de- 
pended the  dignity  and  value  of  all  human  institutions.  "  If 
justice  ceases,  then  no  longer  is  it  worth  while  for  man  to  live  upon 
the  earth."  "  Even  if  civil  society  should  dissolve  with  the  consent 
of  its  members  .  .  ,  the  last  murderer  found  in  prison  must  first 
have  been  executed,  so  that  each  may  receive  what  his  deeds  are 
worth."  -  From  this  standpoint  the  justice  and  necessity  of  the 
death  penalty  are  especially  asserted. 

Criticism  of  Kant's  Theory,  —  It  is  easy  to  refute  Kant.  If 
one  will  be  self-respecting  and  not  permit  himself  to  be  dazzled  by 
a  famous  name,  Kant's  theory  hardly  deserves  the  status  of  a  scien- 
tific attempt.  It  is  nothing  other  than  an  appeal  to  pure  sentiment, 
—  a  sentiment  which,  even  in  Kant's  time,  varies  greatly  with  the 
individual.  It  would  be  very  difficult  to-day  for  a  man  of  scientific 
training  to  maintain  that  there  is  a  uniform  categorical  imperative, 
in  the  way  that  Kant  accepted  it.  Ethics  has  its  historical  phases 
of  development ;  and  this  fact,  as  well  as  legal  history  in  general, 
relentlessly  militates  against  the  acceptance  of  capital  punishment 
for  murder  as  a  principle  valid  from  the  very  beginning.  Kant 
was  correct  merely  in  this,  that  the  fate  of  the  individual  criminal 
should  not  (as  in  his  time  was  so  often  maintained)  be  made  to 
depend  upon  indefinite  considerations  of  expediency.  For  this 
purpose,  his  emotional  appeal  to  the  "  categorical  imperative  " 
superior  to  time  and  space  was  admirably  adapted. 

Since,  however,  it  is  impossible  to  carry  out  a  theory  of  retribu- 
tion, so  Kant  (although  it  was  not  his  task  really  to  carry  out  any 
theory)  was  actually  ol)liged  to  give  up  his  theory,  which  did  not 
proceed  further  than  aphoristic  statements ;  for,  in  many  cases, 
he  substituted  for  the  real  retribution  of  like  with  like  a  retribution 
according  to  eft'ect  or  feeling.^  However,  his  "  categorical  impera- 
tive "  involved  him  in  some  serious  entanglements.  E.g.  an  ille- 
gitimate child,  being  a  child  contrary  to  law,  should,  strictly 
speaking,  not  exist,  ami  consequently  it  is  difficult  to  declare  the 
murder  of  such  a  child  as  punishable.  The  demands  of  honor 
appear  as  "  categorical  imperative  "  (is  there  anything  that  may 
not  at  some  time  and  under  some  circumstances  appear  as  "  cate- 
gorical imperative  "  !) ;  "^  as  a  result,  on  the  question  of  duelling,  he 

2  P.  199.  '  P.  19,S. 

*  The  guillotine  and  radical  action  by  the  State  had  also  in  thoir  timo 
been  moral  duties. 

423 


§80]  HISTORY   OF  THE  THEORIES   OF   CRIMINAL   LAW      [Part   IT 

finds  no  proper  avenue  of  escape.  Here  the  "  categorical  impera- 
tives "  contend  with  each  other  and,  although  they  should  stake 
their  life  on  the  issue,  they  form  here  an  exception. 

However  Kant's  theory  very  properly  criticized  and  refuted  that 
sophistry  that  the  criminal  himself  wills  the  punishment  as  a  con- 
sequence, and  that  it  is  for  this  reason  justified.'  The  same  ex- 
posure, indeed,  in  a  somewhat  more  decisive  manner,  had  already 
been  made  by  Hobbes  and  Rousseau.  That  it  so  soon  afterwards 
could  have  been  set  up  by  Feuerbach,  is  indeed  proof  of  the  vitality 
of  such  legerdemain  of  logic,  with  which,  the  solving  of  the  weigh- 
tiest problems  is  so  lightly  attempted,  and  ever  anew. 

§  SC).  Fichte.  —  Like  Kant,  Fichte  made  a  complete  separation 
of  law  and  morality,^  and  based  law  upon  the  correct,  although 
in  itself  meaningless,  conception  of  freedom.^ 

As  Fichte  based  the  right  of  property  upon  an  arbitrarily  con- 
ceived contract  of  abandonment  by  non-owners  to  the  owners,  and 
as  he  bases  the  State  merely  upon  contract,  so  he  regards  crime 
simply  as  a  breach  of  contract,  i.e.  of  the  rights  guaranteed  by 
contract.  This  breach  on  the  part  of  the  criminal,  strictly  re- 
garded, results  in  a  severance  of  all  legal  relations  between  the 
State  and  the  criminal,  i.e.  the  loss  of  rights  on  the  part  of  the 
criminal.     He  who  is  without  rights  is  an  outlaw.^     Still  the  State 

^  P.  203  :  "If  then  I  enact  a  criminal  law  against  myself  as  a  criminal, 
it  is  in  me  the  pure  Reason,  legislatively  giving  a  right  (homo  noumenon) 
which  subjects  mj^self  to  the  criminal  law  as  a  person  capable  of  crime, 
i.e.  as  another  person  (homo  pheenomenon),  together  with  all  others  in 
the  compact  of  the  citizens.  In  other  words,  not  the  people  (each  in- 
di\adual  among  them)  but  rather  the  court  (the  public  justice),  i.e.  some 
one  other  than  the  criminal,  establishes  the  capital  punishment,  and 
certainly  the  social  contract  does  not  contain  the  promise  to  allow  one- 
self to  be  punished  and  thus  to  dispose  of  one's  self  and  one's  life." 

1  This  was  characteristic  of  the  period,  which  again  is  closely  related 
to  Hobbes.  Abicht,  "Ueber  Belohnung  und  Strafe"  (2  Parts,  Erlangen, 
1796),  would  also  completely  separate  moral  retribution  (diAane  retribu- 
tion) from  civic  retribution  (criminal  justice).  (As  to  this,  see  Hepp. 
I,  pp.  61-64.)  Carl  Chr.  Erhard  Schmid,  "Versuch  einer  Moralphilos- 
ophie" (.Jena,  1790),  distinguished  {cf.  especially  §397):  coercive  evil  — 
this  can  be  applied  by  any  injured  individual  and  by  the  State  in  his 
name,  chastisement  —  this  is  an  affair  of  the  educator,  making  an  example 
—  the  authorities  are  entitled  to  do  this  by  virtue  of  the  social  contract. 
Schmid  believes  that  only  the  Infinite  can  punish,  i.e.  fLx  a  lesser  degree 
of  happiness  in  accordance  with  deserts  of  character.  Kant  even  had 
previously  in  his  "Kritik  der  praktischen  Vernunft"  portrayed  punish- 
ment simply  as  moral  retribution.     As  to  this  see  Hepp,  I,  pp.  24,  25. 

2  "Grundlage  des  Naturrecht  nach  den  Principien  der  Wissenschafts- 
lehre" (Jena  and  Leipzig,  1796),  2  parts.  Nothing  relative  to  criminal 
law  was  offered  by  Fichte's  later  and  mystical  "Staat.slehre,  oder  über  das 
Verhältniss  des  Urstaates  zum  Vernunftreiche." 

«  II,  pp.  113-130. 

424 


Chapter   IV]      THEORIES    FROM    BECCARIA   TO    FEUERBACH  [§  86 

does  not  take  complete  advantage  of  these  harsh  results.  It 
can,  as  a  general  rule,  satisfy  itself  with  a  guarantee  that,  in  the 
future,  the  criminal  will  better  observe  the  contract ;  and  it 
finds  this  guarantee  in  the  so-called  "  Abbiissungsvertrag"  {i.e. 
contract  of  expiation),  from  which  the  criminal  derives  "  the 
important  right  "  that  he  is  not  declared  absolutely  without 
rights  but  is  to  be  punished.''  Thereupon,  by  virtue  of  this 
"  Abbiissungsvertrag",  the  criminal  is  subjected  to  a  reformatory 
punishment. 

But,  as  above  stated,  the  "Abbiissungsvertrag  "  merely  const!-, 
tutes  the  general  rule.  There  are  crimes  of  such  a  character  that 
the  criminal  does  not  appear  to  be  able  to  give  a  satisfactory  guar- 
antee of  his  future  observance  of  the  contract.  In  these  cases 
"  Abbiissung  "  ("  atonement  ",  i.e.  punishment  in  its  proper  sense) 
does  not  take  place ;  there  still  continues  the  total  deprivation  of 
rights.  As  a  result  of  this  deprivation  of  rights,  the  State  is  justi- 
fied, for  its  own  security  (and,  if  need  be,  for  the  security  of  the 
rest  of  the  citizens),  in  taking  the  criminal's  life.  But,  as  Fichte 
expressly  emphasizes,  this  is  not  punishment,  but  rather  a  police 
measure.  A  purely  judicial  sentence  of  death  is,  according  to 
Fichte,  an  impossibility.^  And  since,  if  the  "  Abbiissungsvertrag  " 
did  not  exist,  any  action  would  be  permissible  against  the  criminal, 
who,  in  the  abstract,  has  absolutely  no  rights,  he  believes  that  it 
is  not  only  right  but  also  expedient  for  the  law,  which  necessarily 
regards  the  "  Abbiissungsvertrag  "  as  a  benefit  to  the  criminal,^ 
to  also  assume  the  piu-pose  of  deterrence.' 

Fichte,  indeed,  had  but  little  conception  of  the  specific  conse- 
quences upon  the  individual  criminal  of  the  theory  of  deterrence 
and  the  theory  of  security.  The  controversy-  between  Grolmann 
and  Feuerbach  soon  enough  revealed  that  these  theories  did  not 
harmonize.  Fichte  made  absolutely  no  attempt  to  specify  what 
acts  are  punishable   (deserving  of  punishment).     The  most  he 

'  II,  pp.  97,  98. 

^  II,  p.  124.  Upon  the  whole  Fiehte  is  opposed  to  the  death  penalty. 
He  justified  it  onlv  as  Cato,  according  to  iSallust's  account,  justified  the 
throttling  of  the  followers  of  Catiline.  Cf.  II,  pp.  124.  125.  Tlie  strange 
presumption  that  a  murderer  is  incorrigible  is  merely  an  attempt  to 
harmonize  the  advanced  theory  with  a  principle  of  the  positive  law  which 
is  considered  indispensable. 

«  In  Fiehte,  the  principle  of  deterrence  at  times  assumes  the  coloring 
of  the  principle  of  the  "talio."  Cf.  11,  p.  100.  "Every  one  must  neces- 
sarily stake  as  much  of  his  own  rights  and  freedom  as  equals  the  rights  of 
others  .  .  .  which  he  seeks  to  injure  (the  punishment  of  equal  disadvan- 
tage, 'lex  talionis')."  ^  II,  pp.  99  et  seq. 

425 


§  S()|  HISTOllY    OF   THE   THEORIES    OF    CRIMINAL    LAW      [Pakt   II 

proposes,  })y  way  of  all()ttin<i;  the  objective  amount  (decree;  of 
l)uiiishment,  is  indemnification  in  the  form  of  a  certain  punish- 
ment, o})s('nrely  (k'fined,  l)y  imprisonment  in  a  workhouse.^ 

According  to  Fichte,  the  law  in  general,  and  obviously  criminal 
law  also  (as  Stahl  ^  has  very  correctly  demonstrated),  is  nothing 
other  than  an  external  arrangement  for  coercion,  bereft  of  all 
moral  ideas,  with  but  one  exception — ^the  maintenance  of  a  certain 
abstract  freedom.  Fichte's  ideal  ^°  is  that  of  an  "  arrangement 
working  with  mechanical  necessity,  whereby,  from  every  illegal  act, 
there  results  the  opposite  of  its  purpose."  '^  Consequently  a  con- 
ception such  as  this,  in  which  the  sentiment  of  the  members  of  the 
State  amounts  to  nothing,  amounts  to  nothing  other  than  holding 
that  the  ultimate  security  for  the  maintenance  of  the  legal  system 
is  found  in  unlimited  police  supervision  and  red  tape  (with  permits 
and  passports).  This  is  remarkable  enough  in  a  philosopher  who 
had  so  ardently  defended  the  German  nationality  against  the 
French.  It  is  nevertheless  instructive  to  that  pedantic  and  false 
liberalism  which  seeks  primarily  for  security  against  wrongdoing 
and  in  no  manner  trusts  to  natural  sentiments.  Fichte  is  also 
absolutely  lacking  in  a  true  historical  sense.  Otherwise  he  certainly 
would  have  realized  that  that  basis  for  the  outlawry  of  the  criminal 
which  he  ever>^vhere  ascribes  to  criminal  law  is  merely  in  conform- 
ance with  the  first  stages  of  legal  development. 

However,  some  things  may  be  learned  from  Fichte.  In  the  first 
place,  there  is  involved  in  this  assumption  of  the  outlawry  of  the 
criminal  a  relative  truth  well  worthy  of  consideration ;  it  leads 
to  a  valuation  of  criminal  statutes  which  is  much  more  correct  than 
e.g.  in  the  later  theory  of  Feuerbach.^'-  In  the  second  place,  the 
philosopher  has  a  better  perception  than  many  of  the  jurists  soon 
to  be  mentioned,  in  that  he  sought  a  basis  for  criminal  law  from  the 
viewpoint  of  the  criminal  also. 

8  II,  p.  112. 

^  "Die  Philosophie  des  Rechtes",  I  (3d  ed.),  pp.  230  et  seq. 

1«  I,  p.  169. 

'1  The  purpose  of  reformation  is  in  inextricable  contradiction  to  this 
mechanical  manner  of  conception ;  for  according  to  Fichte  the  law  has 
nothing  to  do  with  the  understanding.  But  how  there  can  be  reformation 
without  a  change  of  the  understanding,  it  is  difficult  to  conceive  —  since 
even  mere  habit  certainly  changes  the  understanding.  Fichte  here  (II, 
p.  114,  cf.  pp.  118,  119),  just  as  is  done  later  by  Grolmann,  avails  himself 
of  the  statement  that  it  is  political  (?)  reformation  that  is  aimed  at  rather 
than  moral  reformation. 

'-  The  criminal  statute  (if  it  would  rest  upon  historical  necessity  and 
not  upon  despotism)  should  be  the  limitation  rather  than  the  basis  of  the 
punishment. 

426 


Chapter  IV]     theories  from  beccaria  to  feuerbach  [§  87 

§  87.  Grolmann.  The  "  Special  Prevention  "  Theory.  —  Grol- 
mann's  theory  (that  of  special  prevention),  '  Hke  tliat  of  Fichte, 
found  the  basis  of  punishment,  as  against  the  criminal,  in  this, 
viz. :  that,  against  him  who  opposes  government  by  law,  there  may 
be  a  right  of  coercion,  which  may  go  even  so  far  as  to  include  lii.s 
destruction.  In  his  search  for  a  moderation  of  this  coercion,- 
he  finds  it  in  the  use  of  a  means  whereby  the  one  threatening  dan- 
ger {i.e.  the  criminal)  can,  for  the  future,  no  longer  be  regarded  as 
such.     This  means  is  punishment.'^ 

The  criticism  of  Grolmann,  made  by  Feuerbach  especially  and 
by  others,  that  he  would  make  the  mere  possibility  (apparently  the 
evil  intent)  of  an  act  rather  than  its  actual  commission  the  reason 
for  punishment,  is,  upon  closer  investigation,  not  well-founded. 
Grolmann,  indeed,  would  prevent  future  wrongful  acts  of  the  crim- 
inal, but  the  punishment  is  to  be  directed  in  reality  against  the 
character  of  the  criminal  as  revealed  by  the  act  he  has  committed, 
from  which  the  commission  of  future  crimes  seems  indicated  as 
likely.  An  evidence  of  this  ^  (although  Grolmann  himself  does  not 
bring  it  out  in  his  definition  of  j)unishment)  is  the  fact  that  he  takes 
the  unlawful  disposition,''  i.e.  the  permanent  character  of  the  crim- 
inal, as  the  determining  factor  in  the  fixing  of  the  punishment  to 
be  applied,  and  advances  the  rule  ^  that  the  greater  the  wrongful 
tendency  of  the  criminal,  and  thus  the  more  dangerous  he  is  for  the 
future,  the  greater  must  be  his  punishment.  The  extent  of  the 
wrongful  tendency,  he  sees  reflected  in  the  nature  of  the  right 
violated  by  the  illegal  act.^ 

Herein  the  untenability  of  his  entire  theory  becomes  openly 
manifest.  Criminal  law  and  morals,  according  to  Grolmann's 
conception,  have  nothing  to  do  with  each  other.  He  formally 
protests  against  the  assumption  that  a  man  should  be  improved 
morally  by  his  punishment.^  Punishment  should  be  directed  not 
against  the  wrongful  tendency  of  the  heart,  but  rather  against  the 

1  "Grundsätze  der  Criminalreehtswissensehaft  nebst  einer  systemat- 
ischen Darstellung  des  Geistes  der  deutschen  Criminalgesetze"  (Giessen, 
1798);  "Ueber  die  Begründung  des  Strafrechts  und  der  Strafgesetzge- 
bung" (Giessen,  1799). 

2  Cf.  "Begründung",  p.  1.57.  The  State  woukl  itself  become  degraded 
if  without  further  reason  it  killed  the  banished  criminal. 

ä  P.  32.  ^  Cf.  especially  pp.  120  et  seq. 

'  P.  54.  6  P.  121. 

'  "The  more  irreparable  and  important  the  violated  right,  then  the 
more  urgently  does  the  interest  of  humanity  demand  the  'not  doing'  of 
the  act,  and  the  greater  the  wrongful  tendency." 

«  P.  125. 

427 


§  88)  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Pakt   II 

will.  But  how  shall  one  distinguish  them  ?  There  can  be  no  doubt 
that  under  Grolmann's  theory  attention  must  be  chiefly  given  to 
the  individuality  of  the  criminal  in  the  jBxing  of  his  punishment. 
The  answer  to  the  question  whether  or  not  he  whf)  has  once  com- 
mitted a  crime  will  presumably  repeat  it  or  later  commit  some  other 
crime,  depends  more  than  anything  else  upon  the  individuality 
of  the  criminal  and  the  special  circumstances  of  the  case.  While 
Feuerbach  often  avails  himself  of  sophistry  in  his  attacks  upon 
Grolmann,  yet  he  is  quite  correct  in  maintaining  that  a  code  which 
can  only  decide  as  to  men  and  their  crimes  in  pursuance  with  broad 
lines  and  general  principles  adapted  to  the  majority  of  cases, 
presupposes  the  impossibility  of  determining  punishability  in  ac- 
cordance with  the  character  of  the  offender.  The  fixing  of  punish- 
ment in  accordance  with  the  importance  of  the  right  violated  by  the 
crime  is  a  radical  departure  from  the  original  principle.  The 
theory  of  reformation  acts  more  logically,  since  it  absolutely  aban- 
dons all  fixed  punishments,  and  makes  the  amount  of  the  punish- 
ment dependent  upon  the  reformation  of  the  criminal,  which  can 
not  be  determined  until  later. 

Grolmann's  "  special  prevention  "  theory  necessarily  succumbed 
to  Feuerbach's  method  of  attack.  It  could  not  serve  as  the  foun- 
dation for  real  progress  in  criminal  law.  The  most  it  could  have 
done  would  be  to  introduce  a  more  lenient  enactment  and  adminis- 
tration of  the  criminal  law  in  cases  where  the  criminal,  punishable 
in  accordance  with  a  presumed  divine  justice,  might  be  regarded 
as  harmless  for  the  future.  During  the  time  when  the  life  of  the 
State  is  in  the  process  of  development,  the  consideration  given  to 
making  the  individual  criminal  harmless  is  very  subordinate,  and 
one  to  which  the  judge  who  comes  into  contact  with  the  individual 
criminal  can  even  with  a  wide  discretion  as  to  punishment  scarcely 
do  justice.  And  so  even  Grolmann  himself  realized  that  he  was 
being  driven  into  a  corner  by  the  attacks  of  his  friend  and  opponent 
Feuerbach.  In  his  later  work  dealing  with  the  foundation  of 
criminal  law,  he  is  considerably  influenced  by  Feuerbach's  ideas 
of  deterrence. 

§  88.  Feuerbach.  —  In  contrast  with  the  foregoing  theories, 
Feuerbach's  theory  ^  was  calculated  to  serve  as  a  foundation  for 

^  "Revision  der  Grundsätze  und  Grundbegriffe  des  positiven  peinliehen 
Rechts"  (1799),  2  parts;  also  the  article  in  the  "Bibhothek  der  peinl. 
Rechtswissenschaft"  (1798),  part  I,  division  2,  No.  2;  also  the  work 
"Ueber  die  Strafe  als  Sicherungsmittel "  (1800);  and  "Lehrbuch  des 
gemeinen  in  Deutschland  geltenden  peinlichen  Rechts"  (1801). 

428 


Chapter   IV]       THEORIES    FROM   BECCARfA   TO    FEUERBACH  [§  88 

that  positive  legislation  of  which  there  was  at  that  period  urgent 
need. 

His  efforts  are  directed  primarily  towards  freeing  the  criminal 
law  from  the  prevailing  theories,  which  regarded  the  positive 
criminal  law  merely  as  an  imperfect  attempt  to  give  expression 
to  an  ultimate  criminal  law  corresponding  to  the  nature  of  things. 
These  theories  declared  a  judge  to  be  justified  in  setting  aside  a 
rule  of  positive  law  where  it  did  not  seem  to  be  in  harmony  with 
that  law  derived  from  general  principles.  The  speculation  upon 
and  the  discussion  of  the  purposes  of  criminal  law,  and  the  theory 
connected  therewith  that  moral  freedom  was  a  prerequisite  to  the 
complete  amenability  of  the  criminal  to  the  law,  were  especially 
well  suited  to  justify  the  above-mentioned  method  of  procedure, 
and  at  the  same  time  to  give  the  judge  the  necessary  appearance 
of  being  bound  by  the  statute.  This  resulted  in  that  arbitrary 
discretion  of  the  judges  which  has  been  described  in  Part  I.  This 
arbitrary  judicial  power  even  extended  to  an  increasing  of  the 
penalties ;  since  it  was  considered  that,  as  the  judge  in  some  cases 
dispensed  with  the  statutory  penalties,  so  in  other  cases  he  was  en- 
titled to  increase  the  penalties  in  pursuance  of  general  principles. 

As  opposed  to  all  this,  the  issue  now  was  how  to  strengthen  the 
authority  of  the  positive  law  of  the  statute,  and  also  (since  the  Caro- 
lina, the  codification  of  the  common  law,  had  in  many  respects  be- 
come impractical)  to  show  how  much  might  be  accomplished  by  a 
precise  and  up  to  date  code.  Feuerbach  indeed,  primarily,  had  only 
the  first  purpose  in  view.  But  the  second  was  a  logical  and  natural 
result ;  consequently  it  was  not  merely  an  accident  that  Feuerbach 
was  soon  entrusted  with  the  composition  of  an  important  code. 

His  Theory.  —  Feuerbach's  theory  (he  also  vigorously  opposed 
the  intermixture  of  theology  and  criminal  law)  ^  is  in  substance  as 
follows :  It  is  a  function  of  the  State  to  prevent  wrongs.  Xot 
being  sufficiently  able  to  attain  this  object  by  direct  physical 
compulsion,  it  is  therefore  entitled  to  use  psychological  compul- 
sion by  threatening  an  evil  to  those  who  would  commit  a  wrong  (a 
crime).  This  threatening,  in  itself,  is  permissible;  it  violates 
the  right  of  no  one.  But  without /»/y?/ »if /j^  the  threat  would  be- 
come ineffectual.  Therefore  the  fulfilment  of  the  threat  is  jus- 
tified. This  is  so  even  from  the  standpoint  of  the  ])arty  punished. 
Since  he  had  knowledge  of  the  threat  of  punishment  prescribed  for 

2  Cf.  also  the  criticism  of  Crolmann's  "Criminalrechtswissenschaft" 
in  the  "Bibliothek  für  peial.  Rechtswissenschaft",    Vol.  2,  St.  1.  p.  3()(). 

420 


§88]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW       [Part    If 

the  wron«?,  wliich  he,  even  apart  from  this,  was  bound  to  avoid,  he 
has  vohnitarily  subjected  himseU'  to  the  fulfilment  of  the  threat- 
ened punishment. 

Feuerbach's  theory  accordinfrly  is  called  the  "  theory  of  psy- 
chological coercion  "  or  the  "  theory  of  deterrence  through  threat 
of  law,"  and  it  is  proper  so  to  designate  it.  But  perhaps  it  would 
be  more  correct  to  call  it  the  "  theory  of  the  positive  law."  The 
punishment  is  justified  by  the  positive  law.  It  extends  so  far 
and  only  so  far  as  can  be  expected  from  the  operations  of  a  positive 
statute,  i.e.  a  published  statute,  made  known  to  everyone.  This  is 
the  true  essence  of  his  theory ;  deterrence  played  a  more  subordi- 
nate part. 

As  may  easily  be  seen,  this  theory  was  not  entirely  original. 
In  its  fundamentals  it  frequently  reminds  one  of  Pufendorf .  But  in 
its  thorough  treatment  of  details  it  is  new  and  original.  Origi- 
nality is  also  a  fit  word  with  which  to  describe  Feuerbach's  polemic 
against  the  theory  of  moral  freedom,  and  his  ability  to  formu- 
late laws.  In  certain  respects  Feuerbach  and  Kant  form  a  parallel. 
Both  seek  a  permanent  support  for  criminal  law.  Kant,  however, 
in  his  idealistic  fashion,  derives  our  knowledge  of  criminal  law,  as 
it  were,  from  Heaven,  by  means  of  apodeictic  maxims  of  eternal 
justice,  which  are  without  proof  or  further  foundation,  — ■  axiomatic 
facts,  as  he  believes.  Feuerbach  bases  criminal  law  upon  the  power 
of  an  earthly  legislator  over  the  baser  impulses  of  human  nature. 
Herein  there  lies  a  great,  although  limited,  truth.  The  power  of  an 
earthly  legislator  and  the  baser  impulses  of  human  nature  permit 
of  a  certain  calculation,  and  consequently  Feuerbach's  theory  ac- 
complished a  greater  step  in  advance  than  the  grandiloquent 
emotionalism  of  the  philosopher  of  Königsberg. 

Above  everything  else,  Feuerbach  denies  that  punishment,  as 
inflicted  by  the  State,  is  moral  (retributive)  punishment  based 
upon  a  pretended  and,  to  us  incomprehensible,  moral  freedom  ;  the 
assumption  of  this  moral  freedom  entailing  for  criminal  law  the 
most  absolute  contradictions,  as  Feuerbach  ably  demonstrated. 
Punishment  is  civic  punishment  (i.e.  temporal,  inflicted  for  pur- 
poses of  State  as  distinguished  from  morality).  It  is  based  upon 
the  clear  pronouncements  of  the  statute,  which  finds  its  justifica- 
tion, from  the  viewpoint  of  the  criminal,  in  the  latter 's  voluntary 
submission,  brought  about  by  means  of  the  threat  of  punishment, 
and  from  the  viewpoint  of  the  State,  in  the  possibility  of  deterring 
from  crime  and  thus  preventing  crime  by  means  of   the  tlu'eat. 

430 


Chapter  IV]      THEORIES   FROM   BECCARIA  TO   FEUERBACH  [§  88 

This  threat  of  punishment  has,  essentially,  nothing  to  do  with  the 
individual.  With  him,  only  the  fulfilment  of  the  threat  is  con- 
cerned ;  and  this,  according  to  Feuerbach,  is  somewhat  of  a  second- 
ary matter,  and  is  requisite  only  that  the  threat  may  be  effective 
in  the  future. 

In  this  way,  Feuerbach  was  able  to  increase  the  authority  of  the 
statute  law,  and  also  to  effectively  demonstrate  the  subordinance 
of  the  judge  to  the  statute  law.^  For  now  the  issue  no  hunger  rests 
upon  the  nature  of  the  individual,  which  is  so  difficult  to  ascertain, 
but  upon  whether  or  not  there  is  included  in  the  act  those  char- 
acteristic elements  which  the  legislator  has  established  for  every 
case ;  since  it  is  only  these  that  can  be  the  criterion,  in  the  ab- 
stract threat  contained  in  the  statute.  That  which  lies  in  the 
heart  of  the  criminal  and  that  which  is  external,  coming  from  at- 
tendant circumstances,  are  equally  unimportant.  There  must  be 
but  one  exception,  and  that  is  where  the  threat  of  punishment 
could  not  be  effective  in  advance,  —  where  an  intelligent  decision 
of  the  author  of  the  act  in  accordance  with  the  baser  impulses 
against  which  the  legislator  has  interposed  the  threat  (itself  a  men- 
tal impulse)  was  not  possible. 

Thus  Feuerbach  acquired  a  firm  position  for  answering  the  ques- 
tion as  to  criminal  capacity.^  Moreover,  since  he  found  the  ulti- 
mate purpose  of  the  threat  of  punishment  to  be  security  from 
violations  of  right,  i.e.  the  subjective  right  of  the  State  and  of 
individuals,  he,  at  the  same  time,  acquired,  a  criterion  ''  for  deter- 
mining the  punishability  of  a  crime  in  relation  to  its  objective  or 
subjective  dangerous  character.  Objectively,  its  dangerous  char- 
acter is  appraised  according  to  the  importance  of  the  jeopartlized 
or  injured  right,  and  subjectively  according  to  the  dangerous  na- 
ture and  intensity  of  the  baser  impulse. 

It  is  apparent  that  all  these  principles  are  easily  grasped  and 
are  adaptable  to  legislative  enactment.  In  their  presence,  illu- 
mined by  Feuerbach's  polemic,  the  doctrines  of  moral  freedom  and 
of  indeterminism  vanished  into  thin  air.  Against  all  the  other 
relative  theories  with  their  special  purposes  of  punishment  (se- 
curity against  the  individual  offender,  reformation,  etc.),  Feuer- 

'  Cf.  especially  the  chief  prineiples  in  the  "Re\nsion"  (I,  p.  147)  con- 
cerningr  the  importance  of  the  criminal  law. 

*  "Revision",  II,  pp.  131  ct  .scr/. 

5  Herein  F'euerbach  is  gfoverned  by  the  conception  of  criminal  law  at 
that  time  prevailing,  viz.  that  the  only  purpose  of  law  was  the  protection 
of  external  freedom. 

431 


§  88]  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Part   II 

bach  invoked  that  undeniable  truth  which  alone  corresponds  to 
the  dignity  of  criminal  law,  yet  properly  restricts  it,  viz.  that  crimi- 
nal law  has  its  efl'ect  not  so  much  through  its  execution  in  the 
individual  case  but  rather  by  applying  itself  to  the  generality  of 
affairs,  and  by  establishing  certain  fundamental  principles  of  con- 
duct as  inviolable,"  —  and  for  these  reasons,  proceeding  dispassion- 
ately and  in  accordance  with  broad  considerations.  No  restric- 
tions, on  the  other  hand,  are  recognized  by  the  theories  of  deterrence 
by  punishment,  or  of  security  against  the  individual  offender,  or 
even  of  that  of  reformation. 

Criticism  of  his  Theory.  —  Feuerbach  was  far  removed  from 
that  which  the  great  majority  usually  conceive  as  the  theory  of 
deterrence,  and  especially  from  that  brutal  theory  of  punishment 
which,  in  moments  of  social  unrest  or  danger,  would  inflict  a  se- 
verer punishment  upon  a  man  because  others  as  well  as  himself  have 
committed  crime.  His  gradation  of  punishment  is  primarily  based 
upon  the  importance  of  the  violated  right,  and  only  gives  second- 
ary regard  to  the  impression  it  will  make  upon  the  minds  of  the 
public  at  large.  Therefore  Feuerbach's  meaning  is  completely 
misunderstood  if  we  assert  (as  Hepp  does,  II,  pp.  260  et  seq.) 
that  according  to  Feuerbach  the  statute  law  is  superfluous.  As  a 
pure  matter  of  logic  it  is  certainly  correct  that  according  to  Feuer- 
bach  the  legal  basis  of  punishment  on  the  part  of  the  State  lies 
in  the  fact  that  the  State  regards  the  punishment  "as  necessary, 
and  that  accordingly  the  propriety  of  the  threat  of  punishment 
rests  upon  the  propriety  of  the  fulfilment  of  the  threat  (but  not 
the  latter  upon  the  former).  It  is  also  true  that  Feuerbach  himself 
later  had  to  abandon  the  view  of  the  acquiescence  of  the  criminal 
in  the  punishment  which  he  had  earlier  adopted.^     In  this  latter  * 

^  There  is  absolutely  no  merit  in  the  criticism  often  made  of  Feuerbaeh 
that  the  threat  of  the  statute  (more  properly  of  the  criminal  law)  has  no 
effect  upon  the  criminal,  since  the  criminal  is  governed  by  his  hope  of 
evading  the  punishment  and  thus  of  the  statute  being  ineffective.  (Cf. 
e.g.  Ziegler,  in  "Gerichtssaal",  1862,  p.  15.)  He  who  actually  commits 
a  crime  may  indeed  cherish  this  hope.  But  how  many  beside  him  would 
not  commit  the  crime,  if  they  were  assured  of  immunity  from  punish- 
ment? Feuerbaeh  has  often  stated  that  he  did  not  regard  the  criminal 
law  as  the  only  means  to  prevent  crime,  although  he  regarded  it  as  an 
indispensable  means. 

^  CJ.  "Ueber  die  Strafe  als  Sieherungsmittel",  pp.  92  et  seq.:  "Lehr- 
buch", §  17,  II,  §  16,  II,  and  as  to  this  Hepp,  II,  p.  222. 

*  This  especially  weak  point  was  capably  controverted  by  Grolmanii, 
"Begründung",  pp.  10  et  seq.  He  who  steals  bread,  does  not  enter  into  a 
contract  to  purchase  it.  A  private  individual  cannot  assume  that  he 
who  enters  his  room  will  pay  him  ten  thaler  if  he  fixes  this  as  the  condition 
of  entry. 

432 


Chapter   IV]      THEORIES   FROM   BECCARIA  TO    FEUERBACH  [§  88 

alteration  of  Feuerbach's  theory,  it  is  apparent  that,  abandoning 
a  justification  of  punishment  from  the  standpoint  of  the  criminal, 
it  used  the  criminal  chiefly  as  a  means  for  other  ends,  —  as  did 
the  theory  of  deterrence  by  the  infliction  of  punishment,  which 
Feuerbach  had  opposed,  and  the  "  special  prevention  "  theory.  It 
is  also  clear  that  it  did  not  escape  many  of  the  vagaries  (^f  these 
last-mentioned  theories,  and  that  it  dealt  with  the  criminal,  not 
according  to  his  individuality  but  according  to  a  certain  average 
of  humanity —  since  the  law  does  not  know  anything  about  the  in- 
dividuals. 

If  Feuerbach  had  arrived  at  a  full  comprehension  of  this,  he 
would  necessarily  have  discovered  that  there  was  not  as  much  op- 
position between  moral  judgment  and  the  criminal  judgment  of  the 
State  as  he  believed.  (Nevertheless  he  was  obliged  to  confess 
that  everywhere  in  the  criminal  law,^  moral  conceptions  and  judg- 
ments "  intrude.")  He  would  also  have  come  to  realize  that  these 
two  kinds  of  judgments  differ  merely  in  this,  that  the  judgment 
of  the  criminal  judge  tests  the  morality  of  the  act  only  to  a  point 
that  is  certain  and  easy  to  establish,  and  also  that  criminal  law 
presents  in  broad  and  general  lines  the  morality  of  the  community. 
In  that  case  he  would  not  have  been  led,  as  he  was,  to  separate  the 
law  from  the  popular  conscience,  nor  to  justify  punishment  merely 
upon  the  ground  of  an  alleged  utility  in  threatening  punishment  or 
upon  the  dangerous  character  of  the  act.  Nor  would  he  have  l)een 
led  to  base  criminal  law  exclusively  upon  the  violation  of  rights 
in  the  subjective  sense.  He  would  not  have  needed  ^^  to  resort 
to  his  discredited  presumption  of  "  dolus  "  (malicious  intention), 
in  order  to  avoid  the  result  that  a  person  ignorant  of  the  criminal 
statute  and  its  penalties  or  mistaken  in  thinking  his  act  did  not 
come  under  the  statute,  could  not  be  punished  on  account  of 
"  dolus  "  (malicious  intention)  — since  deterrence  is  possible  only 
where  there  is  knowledge  of  the  penalties.  And,  finally,  he 
would  not  have  been  obliged  to  regard  man  as  committing  crime 
only  for  baser  motives,  nor  the  legislator  as  operating  solely  upon 
these  motives. 

The  short  work  of  Thibaut :  "  Beiträge  zur  Kritik  der  Feuer- 
bachischen  Theorie  über  die  Grundbegriti'e  des  peinlichen  Rechts  "'' 

'  "Revision",  I,  p.  161. 

■o  Offenses  against  morality  which  do  not  at  the  same  time  violate  a 
subjective  right,  are,  according  to  Feuerbach,  only  offenses  subjt'ct  to 
police  regulation.     Cf.  "Kritik  des  Kleinschrod'scheu  Entwurfs",  1,  p.  U). 

"  1802. 

433 


§  SS]  HISTORY    OF   THE    THEORIES    OF   CRIMINAL    LAW       [Pakt    II 

(which  in  many  respects  is  excellent,  although  it  seeks  to  establish 
deterrence  as  the  correct  theory  in  criminal  law)  '-  lays  down  the 
following  sound  principle  :  No  criminal  legislation  is  more  success- 
ful in  attaining  its  ultimate  purpose  than  that  which  takes  as  its 
criterion  the  ordinary  conceptions  of  moral  retribution,  while  the 
principle  of  deterrence,  in  its  consequences  (since  that  evil  must 
always  be  threatened  which  is  fitted  to  deter,  and  thus  as  far  as 
possible  to  overcome  the  impulse  to  crime)  necessarily  leads  con- 
stantly to  more  terrif^'ing  punishments  and  therewith  to  impover- 
ishment and  animosity.^^  Thibaut  herewith  openly  repudiated  the 
logical  results  of  the  principle  of  deterrence ;  Feuerbacli  had  al- 
ready unconsciously  done  so,  since  he  desired  primarily  to  appraise 
punishability  in  accordance  with  the  importance  of  the  jeopardized 
or  injured  right. ^'*  The  importance  of  the  injured  or  jeopardized 
right  can  be  fixed  only  in  accordance  with  the  moral  valuation  of 
th^  public  conscience.  Deterrence  on  the  contrary  is  obliged  to 
take  into  consideration  primarily  the  greatness  of  the  impulse 
to  the  commission  of  the  crime,  and  this  is  often  very  strong  in  the 
minor  offenses.  The  practical  weakness  of  Feuerbach's  theory  lies 
in  this,  viz.  that  it  leads  the  legislator  at  certain  times  and  under 
certain  circumstances  to  confuse  the  former  standard  with  the  latter, 
and  also  convinces  him  that  if  only  the  punishment  has  been  threat- 
ened by  the  statute,  he  himself  can  not  be  blamed  for  its  injustice. 
Feuerbach's  theory  also  leads  to  a  frequent  confusion  of  legislation 
and  right. 

12  P.  58. 

"  P.  98 ;   pp.  82  et  seq. 

^*  This  had  already  been  correctly  brought  out  by  Schulze,  "Leitfaden 
der  Entwicklung  der  philosophischen  Principien  des  bürgerlichen  und 
peinlichen  Rechts"  (1813),  p.  326. 


434 


Chapter  V 


CRIMINAL  THEORIES   FROM  BEXTHAM  TO  HERBART 


§  89.     Bentham.  Romagnosi's 

Theory  of  Necessary  Self- 
Defense.     Oersted. 

§  90.  Bauer.  The  Admonition 
Theory. 

§  91.  The  Reaction  against  Feuer- 
bach's  Theorj^  of  Deter- 
rence.    Schulze.     Steltzer. 

§  92.  Theory  of  Reformation 
founded  upon  Determin- 
ism. Groos.  Ivrause. 
Ahrens.  Röder. 


§  93.  The  Restitution  or  Com- 
pensation Theory.     Hepp. 

§  94.  Changes  in  the  Al)solute 
Principle  of  Criminal  Law. 
Zachariä.     Henke. 

§  95.  Combination  of  the  Absolute 
and  Relative  Purposes. 
Rossi. 

§  96.  Herbart's  Retribution  Theory 
of  .(Esthetic  Judgment. 
Geyer. 


§  89.  Bentham.  —  An  interesting  parallel  and,  in  many  re.spects, 
a  valuable  completion  of  Feuerbach'.s  theory  i.s  to  be  found  in  the 
theory  of  the  famous  Englishman,  Jeremy  Bentham.^  Bentham 
completely  abandons  any  attempt  to  justify  criminal  law  from  the 
viewpoint  of  the  criminal.  He  simply  declares  it  as  an  axiom  that 
crimes  must  be  prevented  by  punishments  ;  and  that  since  the  law 
is  founded  simply  upon  general  utility,  it  seems  sufficient  to  de- 
scribe the  punishment  as  advantageous  for  the  maintenance  of  the 
general  legal  system,  this  being  obvious.  Therefore  the  only  en- 
deavor of  the  legislator  should  be,  on  one  hand  not  to  punish  acts 
whose  punishment  would  not  serve  a  useful  purpo.se,  or  would 
in  fact  be  harmful,  and  also  not  to  apply  tho.se  kinds  of  punishment 

^  As  to  Bentham,  cf.  especially  Mohl,  "Geschichte  und  Literatur  der 
Staatswissenschaften",  Vol.  3  (1858),  pp.  595  et  seq.  Concerning  his 
theories  of  punishment,  ef.  Hepp,  "  Gerechtigkeits-  und  Nutzungstheorien  ", 
p.  50.  The  matters  considered  in  the  text  can  be  found,  apart  from  the 
original  editions  of  Bentham's  collected  wTitings,  n>a<lably  and  cleverly 
collected  in  the  "Traite  de  legislation  civile  et  penale,  ouxrage  e.xtrait 
des  manuscrits  du  AI.  Jeremie  Bentham,  par  El.  Duinont"  (Paris.  1S2Ü), 
3  vols.  Feuerbach  himself  declared  {'"Lehrbuch",  §  IS,  Note  11)  that 
Bentham's  theory  substantially  corresponded  with  his  own.  [The  learned 
author's  account  of  Bentham's  theories,  here  given,  does  not  do  justice 
either  to  the  scientific  importance  of  his  position  or  to  its  actual  influence 
on  the  Continent.  See  more  fully  the  Critique  of  Benthani  by  John  M- 
Zane,  in  Vol.  II  of  the  present  Series,  "  Great  Jurists  of  the  World."  —  Ed.] 

435 


§89]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW       [Paht   H 

which  would  attain  such  a  result,  and  on  the  other  hand  to  threaten 
harmful  acts  with  sufficient  and  elective  punishments.  Accord- 
ingly Bentham,  in  masterly  fashion,  analyzes  to  their  extreme  rami- 
fications the  actual  or  presumed  evil  whieh  arises  or  could  arise 
from  acts  actually  or  possibly  coming  into  consideration  as  (offenses. 
lie  also  investigates  the  eflfects  of  the  punishments  which  might 
possibly  be  applied.  The  question  of  the  degree  of  punishment 
herein  assumes  a  subordinate  position.  Thus,  less  than  in  Feuer- 
bach,  is  there  to  be  noticed  the  contradiction  which  lies  in  attrib- 
uting more  or  less  of  a  punishable  character  to  acts  in  accordance 
wnth  the  greater  or  less  importance  of  the  injured  or  jeopardized 
relation  of  life,  and  in  the  theory  of  the  subduing  of  impulses  to 
crime  by  threat  of  evil.  But,  as  everywhere  in  Bentham,  one  is 
obliged  to  accept  much  that  is  erroneous  and  distorted  along  with 
his  numerous  ideas  that  are  truly  profitable. 

Romagnosi's  Theory  of  Necessary  Defense.  —  Romagnosi's 
theory  in  many  of  its  aspects  agrees  with  that  of  Feuerbach,  but 
in  others  it  is  quite  different.  This  is  the  theory  of  "  necessary 
defense  "  ^  and  was  first  advanced  in  1791,  though  it  did  not  ac- 
quire influence  in  Germany  until  later.^ 

2  "Genesi  del  diritto  penale."  Translated  into  German  by  Luden, 
" Romagnosi,  Genesis  des  Strafrechts"  (2  vols.  1833). 

3  Among  the  adherents  of  this  theory  are:  Martin,  "Lehrbuch  des 
deutschen  gemeinen  Criminalreehts "  (first  published  in  1812);  Carmi- 
gnarii,  "Teoria  delle  leggi  della  sicurezza  sociale"  (3d  ed.  1832,  Pisa), 
pp.  47  et  seq.;  furthermore,  A.  Franck,  "Philosophie  du  droit  penal", 
c/.  especially  pp.  115  et  seq.  Necessary  defense  of  the  community,  since 
it  need  not  be  completely  analogous  to  that  of  the  individual,  is  reducible 
to  a  coercion  to  repair  an  intended  moral  injury.  In  realitjs  Franck's 
theory  of  necessary  defense  is  identical  -with  the  "restitution  theory"  of 
Welcker.  But  in  addition  there  is  present  in  Franck  (p.  120)  the  founda- 
tion laid  by  Fichte.  Carrara,  "Programma  del  diritto  criminale"  (ed.  5, 
Lucca,  1877,  II,  §§  608  et  seq.)  may  also  be  called  an  adherent  of  the 
theory  of  necessary  defense.  However,  he  deduces  criminal  law  not  as  a 
right  of  the  State  but  rather  as  a  right  founded  upon  "Necessita  della 
umana  natura"  (§  608).  The  State  has  the  right  to  punish  merely  so 
far  as  it  accomplishes  that  legal  protection  ("Tutela  giuridica")  which 
is  entrusted  to  it.  Carrara  stands  upon  the  basis  of  the  old  law  of  nature 
and  the  logical  consequences  of  his  view  would  accord  therewith,  to  the 
extent  that  criminal  law  (which  it  is  stated  in  §  612  is  to  maintain  human 
freedom)  may  not  be  applied  merely  to  promote  the  welfare  of  the  State. 
The  difficulties  inherent  to  this  theory  of  "difesa"  or  of  "tutela  giuridica" 
are  too  easily  dismissed  by  this  famous  and  useful  ^\Tite^,  whose  theory, 
since  it  fLxes  as  the  goal  of  punishment,  the  attainment  of  peace  (of  the 
party  Avronged  and  of  the  citizens),  is  completely  reversed  in  the  "restitu- 
tion theory"  of  Welcker.  From  defense  calculated  to  operate  in  the 
future,  there  does  not  necessarily  follow  (as  Carrara,  p.  614,  postulates)  the 
justification  of  any  admeasurement  of  punishment  whatsoever.  We  would 
gladly  express  our  approval  of  the  several  excellent  statements  of  Carrara, 
but  a  separate  volume  would  be  requisite  for  this  purpose. 

436 


Chapter  V]      THEORIES    FROM    BENTHAM   TO    HERB  ART  [§  89 

Romagnosi  separates  himself  from  Feuerliach  by  very  properly 
refusing  to  give  recognition  to  the  doctrine  of  a  voluntary  sub- 
mission by  the  criminal  to  the  punishment.  Such  agreements  he 
characterises  as  figments  of  the  imagination.  In  his  concei)tion, 
punishment  is  simply  defense  against  future  injuries,  which  might 
be  committed  either  by  the  criminal  himself  or  by  others.  The 
right  of  defense,  as  he  undertakes  to  explain  it,  is  merely  one  ele- 
ment of  the  right  to  life  and  all  other  rights.  When  man  was  in 
his  natural  solitary  condition,  the  right  of  self-defense,  indeed, 
would  cease  at  the  same  moment  as  the  attack.  But  when  human 
society  came  to  exist,  there  arose  from  the  impunity  of  the  indi- 
vidual making  the  attack  a  new  danger  both  for  the  party  attacked 
and  for  all  others,'*  —  a  danger  for  which,  as  the  natural  conse- 
quence of  his  attack,-^  the  criminal  is  lial)le.  In  other  words, 
there  arose  the  right  of  punishment,  which  of  course  has  no  purpose 
other  than  that  of  deterrence.^  This  last-mentioned  line  of 
thought  brings  Romagnosi  to  the  same  conclusions  as  those  reached 
by  the  theory  of  Feuerbach.  Moreover,  like  Feuerbach,  Roma- 
gnosi falls  into  the  error  of  assuming  that  it  is  in  accord  with  the 
principle  of  deterrence  to  establish  more  severe  penalties  where 
rights  of  greater  importance  ^  are  attacked ;  whereas  the  principle 
of  necessary  defense,  as  a  matter  of  fact,  would  require  the  same 
penalty  for  each  and  every  aggression,  if  it  could  not  in  some 
other  way  be  prevented.  This  last  deduction  is  recognized  even 
by  Romagnosi  himself,  since,  according  to  his  conception,  there 
really  arises  only  one  right,  which  appears  in  its  sundry  phases 
along  with  the  various  other  so-called  rights. 

DifiEerence  between  Romagnosi  and  Feuerbach.  —  Romagnosi's 
conception,  however,  is  to  be  distinguished  from  that  of  Feuer- 
bach  by  the  fact  that  while  he,  like  Feuerbach,  makes  a  distinction 
between  law  and  morality,^  he  does  not  regard  them  as  absolutely 
separate.  Yet,  on  the  other  hand,  for  this  very  reason  he  fell  into 
a  fatal  error  which  Feuerbach  was  able  quite  easily  to  avoid,  and 
against  which,  as  w'e  have  seen,  he  very  emphatically  and  effectively 
undertook  to  warn  his  contemporaries.     Romagnosi  regarded  the 

*  §§221,  2,')1  ei  seq.  The  conception  of  punishment  as  atonement  is 
expressly  repudiated.      §  1345. 

s  §§  46,  47. 

*  Cjf.  especially  §  39.5. 

^  These  attacks  should  show  a  stronger  criminal  tendency.  §  1367. 
Romagnosi,  just  as  Feuerbach,  takes  the  average  human  being  as  the 
basis  of  calculation  for  his  punishments.     §  1386. 

8  §§  922,  1385. 

437 


§  S!)l  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW      [PAUT    11 

so-called  moral  frocdom  of  the  eriminal  as  a  prerequisite  for  his  lia- 
bility to  the  full  penalty  of  the  law.  His  "  malvai,nta  "  '-*  is  nothing 
other  than  this  moral  freedom ;  and  closely  connected  with  it  is 
his  error  of  ascribing  the  basis  of  the  crime,  not  to  the  self-love  of 
the  criminal,  but  rather  to  unnatural  impulses.  Here  Uoma- 
gnosi's  theory  goes  absolutely  astray. 

Defects  of  the  Theory  of  Necessary  Defense.  —  There  are  other 
respects  also  in  which  tlie  theory  of  necessary  defense  is  not  sat- 
isfactory. Its  falsity  does  not  lie  so  much  in  the  fact  that  the 
necessary  defense  ends  as  soon  as  the  attack  does  ;  since  this,  if  one 
consider  it  closely,  holds  good  only  under  conditions  where  the 
administration  of  justice  is  very  certain,  and  where  this  is  not 
the  case,  the  party  attacked  can  so  extend  his  defense  that  the 
aggressor  will  be  rendered  harmless  in  the  future.  The  falsity  of 
the  theory  lies  rather  in  the  fact  ^°  that  the  criminal  in  reality  is  not 
always  punished  because  of  his  own  baseness  but  because  of  that  of 
others.  If  these  others  were  morally  perfect,  they  would  not  allow 
the  baseness  of  the  criminal  to  lead  them  astray.  Thus  the  criminal 
must  suffer  for  the  others ;  thus  the  theory  of  necessary  defense  is  no 
more  just  than  that  of  deterrence."  Moreover,  it  has  the  evil  of 
gravitating  towards  the  theory  of  security  against  the  individual 
criminal,  —  a  theory  which  in  its  strong  personal  tendency  necessa- 
rily leads  to  despotism.  Proof  of  this  is  given  by  Romagnosi's  arbi- 
trary and  false  provisions  relative  to  the  degree  of  punishment.^^ 

Oersted.  —  There  came  about  necessarily  a  reaction  against 
Feuerbach's  theory,  and  especially  against  his  absolute  separation 
of  law  and  morality  (w^hich  Romagnosi  had  already  repudiated). 
To  every  unbiased  observer  the  relation  between  criminal  law  and 
morality  is  too  manifest.  The  adherents  of  Feuerbach's  theory 
were  in  this  respect  obliged  to  make  some  revisions.  Thus  the 
Danish  jurist  Oersted,  at  the  very  beginning  of  his  valuable  and 
famous  work  "  Ueber  die  Grundregeln  der  Strafgesetzgebung  ",  ^^ 

9  Cf.  especially  §  473. 

1°  Thus  particularly  Hepp,  II,  pp.  716  et  seq. 

11  The  founding  of  punishment  upon  the  disadvantageous  results  of 
absence  of  punishment  is,  as  a  matter  of  fact,  a  "petitio  prineipii."  It 
is  as  if  one  designated  the  absence  of  a  dam  as  the  cause  of  a  flood,  and 
thereliy  hypothecated  that  there  should  have  been  a  dam  at  the  place  in 
question,  "id  quod  erat  demonstrandum." 

1-  In  Romagnosi's  work,  which  is  a  maze  of  dialectical  argument,  and 
is  often  quite  tedious,  there  may  also  be  found  many  excellent  principles 
of  permanent  value.  [See  Borettini's  critique  of  Romagnosi  in  ''  Ri\'ista 
Penale",  Feb.  1914.  — Ed.] 

1^  Translated  from  the  Danish  (Kopenhagen,  1818). 

438 


Chapter  V]      THEORIES    FROM    BEXTHAM   TO   HERBART  [§  90 

declares  that,  acconling  to  his  view,  criminal  laws  are  rooted  in 
the  moral  laws.^^  He  thus  casts  overboard  the  erroneous  view  of 
Feuerbach  which  refjarded  a  criminal  statute  as  a  necessary  pre- 
requisite for  a  punislmient,^'^  and  also  Feuerbach's  doctrine  of  a 
voluntary  submission  of  the  criminal  to  the  punishment.  But, 
as  already  remarked,  the  abandonment  of  this  last-mentioned 
doctrine  destroyed  the  scientific  unity  of  Feuerbach's  system,  and 
the  defense  undertaken  by  Oersted  against  the  reproach  of  having 
the  characteristics  of  a  Draco  which  was  cast  upon  the  system 
of  Feuerbach  as  being  its  ultimate  result,^^  is  just  as  little  effective 
as  that  by  which  Feuerbach  himself  sought  to  avoid  this  same  re- 
sult. \Miere  Oersted  breaks  away  from  the  logical  deductions  of 
the  theory  and  accepts  milder  punishments  because  popular  senti- 
ment does  not  desire  the  harsh  penalties  required  by  pure  deter- 
rence, he  is  saying  nothing  other  than  that  popular  sentiment 
repudiates  the  results  of  the  theory  of  deterrence,  and  thereby 
repudiates  the  theory  itself .^'^ 

§  90.  Bauer.  The  "  Admonition  "  Theory.  —  The  "  admoni- 
tion "  theory  of  Bauer  is  also  regarded  as  a  modification  of  Feuer- 
bach's theory  of  deterrence.^  Yet  Bauer,  by  proceeding  on  the 
course  on  which  he  began,  might  ha^'e  accomi)lished  more  than 
a  mere  attenuation  of  Feuerbach's  principles,  as  his  theory  is  des- 
ignated. It  was  the  severity  and  the  erroneous  conclusions  of 
Feuerbach's  theory  which  led  Bauer  to  his  attempt  to  modify  it. 
Bauer,  like  Feuerbach,  made  a  distinction  between  the  purpose 
of  the  criminal  statute  and  the  purpose  of  the  infliction  of  the  pun- 
ishment ;  and,  like  Feuerbach,  he  justified  the  latter  not  upon 
some  relation  already  existing  between  the  individual  and  the 
State,  but  rather  solely  upon  the  existence  of  the  criminal  statute 
or  the  positive  legal  rule.-  Still,  the  difference  between  Bauer  and 
Feuerbach  is  one  deeper  and  more  far-reaching  than  even  Bauer 
himself  perceived.     The  "  admonition  "  of  Bauer  ^  is  not  an  effect 

"  Cf.  espeoially  p.  5. 

16  Especially  p.  109. 

1«  Pp.  149  el  aeq. 

1^  Oersted's  attempt  to  unite  the  "special  prevention  theory"  with 
Feuerbach's  "theory  of  deterrence"  is  a  complete  failure.  Cf.  Hepp, 
II,  pp.  590  et  seq. 

'■  Cf.  "Die  Warnunfjstheorie  nebst  einer  Darstolluns:  uiul  Btnirlliciliing 
sämmtlicher  Strafrechtstheorien"  (1830).  Also  an  article  published  l)y 
Bauer  in  1827,  in  the  "Archiv  des  Criminalrechts",  pp.  429-472  ("Versuch 
einer  Berichtisune;  der  Theorie  des  psychologischen  Zwanges"). 

^  "Warnungstheorie",  p.  44. 

'  "Moneat  lex  priusquam  feriat"   p.  130. 

439 


§  UO]  HISTORY    OF   THE   THEORIES   OF   CRIMINAL    LAW       [Pakt    II 

upon  the  l)ascr  impulses  (or,  more  eorreetly,  a  paralysis  of  the 
same)  produced  by  the  threat  of  the  punishment.  For  (as  Bauer 
very  correctly  remarks)  by  no  means  all  crimes  ha\'e  their  orijjin 
in  the  baser  impulses.  Crimes  can  also  arise  from  political  or 
relijjious  fanaticism,  i.e.  from  an  erroneous  comprehension  of 
moral  duties.'*  The  "  admonition  "  in  the  conceptif)n  of  Bauer 
affects  the  moral  as  well  as  the  baser  nature  of  man/^  and  is  rather 
the  reflected  image  of  the  value  of  the  legal  system,  "^rhe  legisla- 
tor holds  up  before  the  citizens  a  picture  of  the  liability  to  punish- 
ment of  the  (Timinal  acts ;  and  the  measure  of  the  punishableness 
he  derives  from  the  importance  of  the  individual  legal  institution  or 
legal  interests  which  are  jeopardized  or  attacked  by  the  act  of  the 
criminal.^ 

From  this  point  of  view,  Bauer,  unlike  Feuerbach,  concedes  the 
criminal  punishment  of  acts  which  violate  no  subjective  rights 
but  which  indirectly  undermine  the  legal  system.^  Yet,  although 
Bauer  (as  above  mentioned)  repeatedly  maintained  that  the  "  ad- 
monition "  of  the  criminal  statute  also  affected  the  moral  element 
of  man,  he  was  unable  to  discover  a  relationship  between  law  and 
morality.^  Since  he  repudiated  Feuerbach's  view  of  the  voluntary 
submission  of  the  criminal  to  the  punishment,^  his  theory  ended 
in  a  renunciation  of  a  philosophical  justification  of  punishment,  and 
thus  in  a  justification  merely  by  reference  to  the  positive  law  {i.e. 
ultimately  again  shifting  towards  the  viewpoint  of  Feuerbach), 
which  is  at  least  open  to  question. ^°  In  strict  analysis,  the  legis- 
lator can  threaten  any  evil  by  way  of  punishment,  and  if  the 
threatened  evil  is  inflicted,  the  criminal  upon  whom  it  is  inflicted 
may  not  complain  as  to  its  injustice.  This  freedom  of  the  legis- 
lator, according  to  Bauer's  presentation,  is  not  limited  by  regard 
for  historical  tradition,  and  is,  indeed,  limited  only  by  the  con- 
sideration that  possibly  too  severe  penalties  are  less  effective.  This 
reliance  upon  the  positive  law  is  something  totally  difterent  from 
the  "  admonition  ",  the  operation  of  which  is  to  be  seen  only  in  the 
voice  of  conscience.  In  spite  of  its  fair  promise  to  find  a  better 
principle,  the  conclusion  of  the  admonition  theory  is  merely  a  re- 
production in  paler  colors  of  the  theory  of  Feuerbach,  or,  as  Heinze 
puts  it,^^  a  rechristened  theory  of  deterrence. 

*  P.  169.  7  Pp.  106  et  seq. 

^  P.  38.  8  Pp.  50,  56. 

«  Pp.  126  et  seq.  9  P.  83. 

"  Cf.  pp.  226  et  seq. ;   p.  233. 
"  In  Von  Holtzendorff's  "Handbuch",  I,  p.  268. 

440 


Chapter  V]      THEORIES    FROM   BEXTHA.M   TO   HERBART  [§  91 

§  01.  The  Reaction  against  Feuerbach's  Theory  of  Deterrence. 
Schulze.  —  Of  those  writings  which  were  publislied  in  oppositicai 
to  Feuerbach  and  Grolmann  and  sought  to  estabhsh  again  the 
relation  between  law  and  morals,  the  most  important  and  the  most 
valuable  in  criticism  of  principles,  is  that  of  the  philosopher,  G. 
Ernst  Schulze  :  "  Leitfaden  der  Entwickelung  der  philosophischen 
Principien  des  bürgerlichen  und  peinlichen  Rechts  ",  published  in 
1813.  Schulze's  combination  of  his  ideas  with  the  formal  theory 
of  necessary  defense  has  unfortunately  led  to  his  theory  being 
regarded  as  merely  a  slight  modification  of  the  other,  and  for  this 
reason  it  has  not  received  the  attention  it  deserves. 

Schulze  regarded  morals  as  the  principal  criterion  in  determining 
the  range  of  punishable  actions.  Consequently,  he  does  not  make 
a  specific  distinction  between  juristic  guilt  and  moral  guilt ;  he 
regards  the  punishable  character  of  an  act  as  existing  indep>en- 
dently  of  the  statute  law.^  Without  any  special  predilection  for 
dealing  with  definite  varieties  of  punishment,  he  exhibits  as  the 
chief  purpose  of  punishment,^  not  the  evil  which  may  be  inflicted 
upon  the  criminal,  but  rather  the  express  designation  of  the  crime 
as  an  act  i)rejudicial  to  the  progress  of  humanity.^  But  instead 
of  proceeding  from  this  basis  to  determine  how  the  morality  exer- 
cised generally  by  the  State,  and  which  must  coerce  the  individual, 
is  to  be  distinguished  from  the  morality  of  the  individual,  and  thus 
founding  the  specific  character  of  law  as  opposed  to  morals  in  the 
ordinary  sense,  Schulze  suddenly  substitutes  the  principle  of  neces- 
sary defense  (or  protection  of  the  legal  system).  The  criminal  is 
punished  because  punishment  is  a  means  to  restrain  both  him  and 
others  from  doing  further  damage.  This  opened  the  door  to  criti- 
cal objections.  That  punishment  is  not  necessary  defense  in  the 
ordinary  sense  is,  as  already  remarked,  easy  to  demonstrate.  For 
this  reason  Schulze's  other  and  more  thoroughgoing  ideas  were 
overlooked,  and  consequently  his  book  actually  had  little  effect. 

Steltzer.  —  In  the  meantime,  in  Steltzer's  "  Kritik  "  of  Freiherr 
i\  Egger's  draft  of  a  penal  code  for  the  Grandduchies  of  Schleswig 
and  Holstein,^  the  Fichte-Grolmann  doctrine  is  found,  with  a  fun- 
damental change,  viz.  punishment  was  to  be  regarded  as  a  means  of 
reformation.     According  to  Steltzer,  punishment  did  away  with  the 

1  Pp.  378  et  seq. 

2  P.  52 ;   p.  353  note. 

'  Schulze  also  gives  an  excellent  criticism  of  the  theories  of  deterrence, 
reformation,  and  retribution. 
M811,  2  Parts. 

441 


§  92}  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Part   II 

otherwise  existing  necessity  of  exclii(lin<^  tlie  criminal  from  tlic  Icj^al 
community ;  since  by  reformation  of  the  offender  it  secured  im- 
munity from  him  for  the  future.''  But  a  presumption  of  reforma- 
tion should  be  determinative  in  the  fixin<j;  of  the  amount  of  punish- 
ment. Since  the  uncertainty  of  a  moral  reform  ^  by  means  of  the 
State  and  its  agencies  is  self-evident,  Steltzer  speaks  of  effecting 
a  juristicaliy  reformed  attitude  ^  on  the  part  of  the  party  punished ; 
he  seems  not  to  have  realized  that  this  is  an  impossible  conception. 
Punishment,  according  to  Steltzer,  is  essentially  a  continuing 
suffering  by  deprivation  of  liberty.^  Steltzer  did  not  attempt  to 
designate  precisely  the  acts  which  are  punishable  in  accordance 
with  his  principle ;  but  generally  speaking,  he  regarded  all  acts 
as  punishable  which  imperiled  the  rights  of  others.^ 

Apart  from  the  objections  to  be  noticed  later,  which  could  be 
urged  against  any  punishment  having  as  its  principal  and  primary 
purpose  the  reformation  of  the  individual,  Steltzer 's  theory  of  ref- 
ormation lacks  a  foundation,  in  so  far  as  he  was  unable  to  establish 
punishment  against  the  criminal  as  a  right.  He  conceived  it  rather 
as  a  rule  imposed  upon  the  State  by  necessity.  There  is  no  need 
of  such  a  basis  if  the  punishment  is  contemplated  not  as  an  evil 
but  rather  as  a  means  of  education. 

§  92.  Theory  of  Reformation  Founded  upon  Determinism. 
Groos.  —  The  theory  of  reformation  was  taken  up  also  from  the 
standpoint  of  medicine  and  natural  science  by  Groos,  and  from  a 
general  philosophic  standpoint  by  Krause  and  the  adherents  of 
Krause's  philosophy,  notably  Ahrens  and  Röder. 

Groos  ^  regarded  the  criminal  as  a  grown-up  man  in  need  of 
further  training.  A  crime  he  regards  as  a  piece  of  roguish  mis- 
chief ("  Bubenstück  "). 2  His  investigation  of  guilt  was,  on  the 
one  hand,  influenced  by  an  understanding,  due  to  his  experience 
as  a  physician  of  the  insane,  that  crime  and  insanity  border  upon 
each  other  and  are  at  times  hard  to  distinguish.  Also  (in  accord 
with  the  Greek  philosophy)  he  sought  for  guilt  not  so  much  in  the 
will  as  in  a  defective  understanding  of  the  good.  Thus,  his  theory 
rested  upon  a  clearly  defined  determinism.  IVIan  acts  necessarily 
and  only  according  to  motives,  although  these  motives  are  often 

6  Pp.  8,  13.  6  P.  129.  7  P.  37. 

8  P.   11.     The  death  penalty  is  justified  as  an  extreme  method  of 
obtaining  security. 

9  Pp.  8,  26. 

1  "Der  Skeptieismus  in  der  Freiheitslehre"  1830. 

2  C/.  p.  140. 

442 


Chapter  V]      THEORIES   FROM   BENTIIAM   TO   HERBART  [§  92 

quite  obscure.  But  these  motives  are  not  raoral.^  Man's  deci- 
sions are  based  on  his  intellectual  conceptions.  He  desires  the 
good  and  can  desire  nothing  else.  Only  he  has  often  a  false  con- 
ception of  the  good,  as  when  he  deems  it  good  to  purchase  his  own 
advantage  with  another's  disadvantage.  He  makes  a  false  calcu- 
lation. Consequently  the  question  is  simply,  through  education, 
to  bring  about  in  the  criminal  a  different  conception,  or,  as  we  may 
say,  a  difi'erent  standard  for  his  course  of  action. 

To  be  sure,  there  thus  disappear,  as  Groos  himself  points  out,^ 
the  conceptions  of  merit  and  guilt.  But  since  the  former  owes  its 
origin  to  our  pride,  and  the  latter  to  our  desire  for  vengeance, 
their  disappearance  is  not  to  be  regretted.  Nevertheless,  accord- 
ing to  Groos,  criminal  law  and  morality  in  no  way  lose  their  funda- 
mental principles.  On  the  contrary,  in  accordance  with  the 
deterministic  doctrine  these  principles  are  more  sure  in  their  opera- 
tion, while  the  usual  doctrine  of  freedom  of  will  openly  admits 
the  possibility  of  even  the  trained  and  educated  man  continuing 
to  revolt  against  law  and  morals.  Groos'  conception  allowed  de- 
terminism to  exercise  a  very  effective  influence  over  criminal  law. 
The  extent  of  the  offender's  capacity  for  ideas,  as  exhibited  in  his 
mental  operations,  should  be  studied  and  taken  account  of  by  the 
legislator  and  jurists,  in  order  that,  through  chastisements  and 
deprivations,  the  offender  may  perhaps  be  transformed. 

There  is,  however,  no  foundation  for  the  charge  that  Groos 
confuses  crime  and  insanity.  He  exprv^ssly  says  that  the  respon- 
sible transgressor  of  the  law  is  amenabl-^  to  the  influences  of  im- 
provement of  his  understanding  and  of  deterrence,  while  for  the 
lunatic  such  influences  are  unavailable  and  he  must  be  subjected 
to  medical  cure.  But  the  fallacy'  and  error  of  his  doctrine  consist  in 
its  absolute  exclusion  of  the  idea  of  merit  and  guilt,  without  which 
practical  life  and  the  law  (which  represents  one  side  of  life)  cannot 

3  pp_  53^  77^  78^  90,  128.  Groos  designates  his  determinism  (p.  53) 
in  contrast  to  the  mechanical  baser  determinism  as  a  higher  and  religious 
determinism  which,  by  him  as  the  original  source  of  good,  is  derived  from 
a  divine  intelligent  impulse  l)orn  in  man.  According  lo  (Jroos  every 
human  l)eing  of  nect^ssity  strives  for  the  good.  Related  with  the  idea  of 
Groos  and  the  "Phrenology"  of  Gall,  but  far  more  crude  than  tlie  former 
is  the  foundation  of  criminal  law  in  Datikirnrdt,  "Psychologie  und  Criminal- 
recht"  (1863).  Dankwardt  proceeds  from  the  acceptance  of  an  absolute 
lack  of  freedom  in  human  beings  and  conceives  criminal  law  as  a  means, 
(1)  to  satisfy  the  undenial)le  natural  impulse  of  the  injured  party  for 
vengeance;  (2)  to  eliminate  danger  for  the  community.  He  explains  the 
mitigation  of  punishment  in  advancing  culture  as  a  softening  of  the 
naturo.l  impulse  to  revenge  (destroy). 

*  P.  25. 

443 


§  92]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW       [Part    II 

exist.  Even  concefling  that  there  f]^enerally  dwells  within  man  an 
impulse  towards  the  good  and  rational  (a  point  contested  by 
Theology),  there  still  arises  the  question  whether  this  is  not,  per- 
haps, for  the  reason  that  the  individual's  belief  in  his  own  respon- 
sibility can  never  be  entirely  extinguished.  The  weakening  of 
this  thought  '"  will  undoubtedly  lead  to  the  spread  of  evil.  More- 
over, let  no  one  think  that,  from  highly  developed  determinism  a 
humane  criminal  law  will  readily  arise.  P>om  the  remark  marie  by 
Groos  that,  under  some  circumstances,  even  capital  punishment 
is  justifiable,  it  is  evident  that  a  different  method  of  estimating  the 
efficacy  of  the  means  of  educating  the  offender  might  lead  to 
harsh  penalties  and  the  frequent  application  of  the  death  penalty. 
But  Groos  had  never  made  an  attempt  to  define  the  limits  of  crimi- 
nal actions  and  to  demonstrate  the  possibility  of  a  sufficientlj'' 
definite  criminal  law  based  upon  his  theory.  Here  his  theory 
was  subject  to  all  the  charges  which  Feuerbach  had  justly  made 
against  the  theory  of  Grolmann.^ 

Krause.  —  Krause,^  who  in  other  respects  was  not  an  adherent 
of  determinism,  regarded  punishment  as  a  means  of  education  {i.e. 
not  in  its  nature  and  purpose  as  an  evil).  He  who  was  undergoing 
punishment,  was  under  guardianship  like  the  immature.  The 
State  has  the  right  to  interest  itself  in  the  development  of  the  im- 
mature, in  the  reformation  of  the  morally  depraved  will.  Accord- 
ing to  Krause,^  there  can  be  no  such  thing  as  a  legal  authority  to 
inflict  evil,  as  such,  and  thereby  cause  suffering.  These  theories 
have  their  deeper  foundation,  on  the  one  hand,  in  that  absolute 
value  placed  upon  the  individual  by  the  philosophy  of  Krause, 
which  forbids  an  employment  of  the  individual  solely  as  an  instru- 

5  Cf.  also  Jarcke's  polemic  in  Hitzig's  "Zeitschrift  für  die  Criminal- 
rechtspflege  in  den  preuss.  Staaten"  (1829,  Vols.  21-23). 

^  It  will  not  be  necessary  to  take  up  carefully  those  erroneous  doctrines 
which  are  indispensable  as  a  basis  for  exact  observation  in  the  sense  of 
natural  science,  —  doctrines  which  regard  crime  as  a  consequence  of  a 
mental  prefiguration  of  the  criminal  (George  Combe).  Concerning  this, 
and  especially  in  opposition  to  the  results  of  the  mental  doctrines  of  Gall, 
cf.  Mittermaier,  in  "Neues  Archiv  des  Criminalreehts "  (1820),  pp.  412 
el  seq.;  Hepp,  II,  pp.  646  et  seq.;  Franck,  "Philosophie  du  droit  penal", 
pp.  64  et  seq.  A  new  attempt  at  a  founding  of  criminal  law  upon  the 
foundations  laid  by  Groos  is  that  of  Karel  J.  Rohan,  "Ein  Versuch  über 
die  Entstehung  und  Strafbarkeit  der  menschlichen  Handlungen"  (Wien, 
1881).  But  here  determinism  is  made  use  of  in  the  sense  of  Feuerbaeh's 
"theory  of  deterrence." 

[See  §  102o,  post,  for  this  group  of  theories.  —  Ed.] 

''  Cf.  especially  Karl  Christ.  Friedr.  Krause,  "Das  System  der  Rechts- 
philosophie", ed.  Rödcr  (1874). 

8  Pp.  457,  532. 

444 


Chapter  V]      THEORIES    FROM    BENTHAM   TO    HERBART  [§  92 

ment  of  the  civil  community ;  and,  on  the  other  hand,  in  that 
solidarity  of  interests  of  members  of  the  community,  which  Krause 
so  frequently  emphasizes,  and  in  accordance  with  which  the  com- 
munity must  interest  itself  in  the  training  and  culture  of  its  individ- 
ual members. 

Ahrens.  —  Ahrens  ^  gives  to  this  theory  a  coloring  which  touches 
even  its  absolute  foundation ;  for  he  regards  the  purpose  of  the 
punishment  as  the  restoration  of  the  violated  legal  order  of  things. 
But  he  found  this  restoration  of  the  legal  order  only  in  the  per- 
sonality of  the  criminal  and  not  in  an  effect  upon  others.  Con- 
sequently, rejecting  all  absolute  theories  (which  he  regards  as 
amounting  more  or  less  to  retribution),  he  designates  his  theory 
as  the  theory  of  reformation,  and  effectively  defends  himself 
against  numerous  obvious  objections. 

The  first  of  these  objections  consists  in  the  criticism  made 
against  theories  of  reformation  in  general,  viz.  that  they  confuse 
the  standpoints  of  legality  and  morality.  Attention  to  reforma- 
tion involves  solely  the  latter,  —  reformation  has  no  place  in  a 
legal  decision.  In  opposition  to  this,  Ahrens  justly  observes  that 
a  decision  as  to  guilt  presupposes  a  certain  moral  consideration. 

The  second  objection  is  that,  under  the  theory  of  reformation, 
crimes  committed  in  a  rebellion  must  remain  unpunished,  since 
it  is  certain  that  their  author  will  never  again  commit  them.  To 
this  Ahrens  in  a  sense  answers  with  justice :  "  Where  a  man's 
proper  power  of  will  has  shown  itself  so  weak  that,  through  emo- 
tion or  passion,  it  gives  way  to  a  crime,  e.g.  homicide,  can  certaint\- 
exist  that  he  will  not  again,  through  his  passions  or  emotions,  yield 
to  further  or  similar  crimes?  This  must  be  answered  in  the 
negative,  and  for  his  reformation  a  full  period  of  time  will  cer- 
tainly be  necessary." 

However,  the  theory  of  reformation  can  never  defend  itself 
against  the  objection  that  the  execution  of  penalties,  even  when 
done  in  the  most  humane  and  advanced  manner,  must  necessarily 
differ  specifically  from  the  training  of  the  immature.  The  teacher 
must  deal  with  the  pupil  solely  with  the  viewpoint  of  advancing 
him.  If  this  were  done  by  the  State  in  respect  to  the  criminal, 
then,  for  those  classes  among  which  crime  especially  arises,  the 
punishment  would  be  something  to  be  welcomed.  The  State 
would  improve  the  individual,  but  would  encourage  the  masses 

'  Cf.  "Naturrecht  oder  Rechtsphilosophie"  (Gthcd.,  1871),  II,  pp.  44S 
et  seq. 

445 


§92]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW      [I'aht    II 

to  the  commission  of  crime.  This  is  impossible  to  contemplate. 
Punishment  can  never  be  completely  relieved  of  its  character  of 
disgrace,  which  (however  leniently  yet  positively)  must  manifest 
itself  in  the  treatment  of  persons  given  a  significant  sentence  of 
imprisonment.  There  is  no  substantial  merit  in  the  reply  that  we 
are  yet  far  enough  removed  from  such  an  enticing  arrangement  of 
our  penal  institutions,  and  that  there  is  for  financial  reasons  little 
to  be  feared  in  this  respect.  According  to  the  theory  of  reforma- 
tion, such  hindrances  to  a  better  treatment  of  convicts  must,  as 
far  as  possible,  be  eliminated ;  even  these  efforts,  for  that  matter, 
if  carried  through  regardlessly,  would,  little  by  little,  remove  from 
popular  usage  the  idea  of  guilt,  and  substitute  the  notion  of  "  de- 
fective training  "  for  which  the  offender  is  not  to  blame. 

If  the  theory  of  reformation  is  carried  to  its  logical  results,  as, 
in  fact,  was  done  by  Ahrens,  this  elimination  of  the  conception 
of  guilt  involves  further  that  the  decision  of  the  judge  must  al- 
most entirely  lose  its  significance ;  for  the  duration  of  the  punish- 
ment (and  even  its  kind)  would  be  fixed  not  by  the  statute  and  the 
judge,  but  rather  by  the  observation  and  discretion  of  the  prison 
officials.  Such  a  system  of  punishment  would  undoubtedly  result 
in  hypocrisy  and  arbitrary  action,  and  would  necessarily  seem  odious 
to  a  people  who  still  cherished  freedom  in  its  ideal  sense.  It  would 
deprive  the  people  of  the  satisfaction  of  seeing  a  base,  contempt- 
ible act  sufficiently  branded  as  such  by  the  State.  The  consistent 
theory  of  reformation  is  merely  the  theory  of  advanced  despotism  ; 
can  any  one  deny  that  such  a  theory  can  be  excessively  cruel? 
Moreover,  it  is  not  apparent  why  punishment  should  be  limited 
essentially  to  wrongs.  Perhaps,  from  the  moral  standpoint, 
everyone  is  susceptible  of  improvement,  and  since  punishment  is 
no  evil  but  rather  a  benefit,  then  better  punish  too  much  than  too 
little. 

Röder.  —  Röder  ^'^  sought  to  give  greater  definiteness  to  the 
theory  of  reformation  by  his  statement  that  the  purpose  of  punish- 
ment lies  in  the  elimination  of  the  actually  proven  immoral  will ; 
wherefore,  everyone  may  be  placed  under  supervision  {i.e.  criminal 
supervision)  exactly  to  the  extent  that  he  has  manifested  a  will 

^°  Cf.  Röder,  "Zur  Rechtsbegi-ündung  der  Besserungsstrafe"  (1846); 
"Grundzüge  des  Natturreeht"  (2d  ed.  1860-1863),  II.  pp.  163  et  seq.; 
"Der  Strafvollzug  im  Geiste  des  Rechtes"  (1863);  "Besserungsstrafe 
und  Besserungsanstalten  als  Reehtsf orderung"  (1864);  "Die  herr- 
sehenden Grundlehren",  pp.  97  et  seq.:  "Kritische  Vierteljahrssehrift 
für  Gesetzgebung  und  Rechtswissenschaft"  (1869),  pp.  375  et  seq. 

446 


Chapter  V]      THEORIES   FROM    BEXTIIAM   TO   HERBART  [§  93 

inclined  to  wrongdoing. ^^  But  there  is  no  identity  between  the 
extent  of  the  wrong  and  the  duration  of  the  unlawful  or  immoral 
will,  and  they  in  no  way  run  parallel.  A  reformatory  punishment, 
to  be  consistent,  can  and  must  be  pursued  only  so  far  as  an  imj)rove- 
ment  (presumptive  at  least)  is  obtained  ;  it  can  never,  at  least  only 
occasionally,  be  generally  and  certainly  fixed  by  statute  or  judicial 
decree.  The  above-stated  principle  is,  therefore,  only  a  sophistry 
with  which  Röder  (who  is  really  of  value  in  the  problem  of  prison 
systems)  deceived  himself;  the  possibility  of  shortening  a  sentence 
that  has  been  pronounced  because  of  the  subsequent  improvement 
of  the  convict  can  never  have  more  than  a  relative  justification. 
While  Röder,  in  order  to  maintain  the  character  of  actual  punish- 
ment for  his  educative  penalties,  speaks  of  the  "  untauglit  simple- 
tons "  ^"  who  are  to  be  thus  educated,  he  thus  conceals  the  further 
obnoxious  logic  of  the  theory  of  reformation,  viz.  that  the  desir- 
able things  in  life  must  be  conferred  upon  the  delinquents,  if  we 
can  manage  to  raise  the  needed  funds,  whenever  these  good  things 
would  help  to  reform  the  said  delinquents,  and  although  the  great 
mass  of  honest  people  in  the  world  have  to  get  along  without  them. 
The  theory  of  reformation  ^^  can  never  free  itself  from  the  reproach 
of  raising  an  exclusive  cult  of  the  individual. ^^ 

§  93.  The  "  Restitution  "  or  "  Compensation  "  Theory.  — The 
so-called  "  restitution  theory  "  or  "  compensation  theory  "  which 
has  been  worked  out  in  an  interesting  manner  especially  by 
Welcker,^  is  in  reality  merely  a  collection  of  the  various  relative 
theories,  especially  of  the  theories  of  reformation  and  of  deter- 
rence. However,  the  theory  of  deterrence  appears  in  such  a  mild 
shape  and  form  that  it  is  similar  to  those  theories  which  would 
merely  designate,  by  means  of  punishment,  certain  limits  which  a 
man's  course  of  action  must  not  violate.     In  order  to  justify  the 

"  Cf.  especially  "Grundh^hron",  p.  99.  '=  P.  107. 

13  Carrara,  "Programma  del  diritto  criminale",  II,  619  very  aptly 
states  that  the  uncertain  duration  of  tlie  punishment  resulting  from  the 
principle  of  reformation  completely  destroys  its  moral  effect  "forza 
morale." 

'^  Incidentally  the  reformatory  punishment  can  also  be  pushed  in  the 
contrary  direction,  if  one  argues  that  the  convict  must  not  be  set  free  nniil 
he  has  reformed  and  there  is  no  danger  from  him  for  human  society. 
The  legal  system  in  the  State  does  not  need  to  secure  absolute  safety  from 
violations  of  law  and  injuries,  and  it  is  not  able  to  do  so.  That  dangerous 
men  must  be  set  free  is  no  reproach  against  the  other  criminal  theories. 

'"Die  letzen  Gründe  von  Recht,  Staat  und  Strafe"  (ISi;^).  Cf. 
also  Welcker,  "Die  Universal-  und  die  juristisch-politische  Encydopädie 
und  Methodologie"  (1829),  pp.  573  cl  seq.  The  citations  refer  to  the 
former  work. 

447 


§03]  HISTORY   OF   THE   THEORIES   OF   CRIMINAL   LAW      [Pakt   II 

punishment  from  the  standpoint  of  the  criminal,  he  joins  to  this 
tiieory  the  contract  theory  of  Fichte,  althou<i;h  in  a  more  moderate 
form  and  not  designated  as  such.  The  violation  of  a  right  con- 
tained in  the  crime  creates  an  obligation  to  make  indemnification. 
The  criminal  does  not  (as  Fichte  would  have  it)  become  completely 
without  rights,  but  only  to  the  extent  that  the  community  possesses 
an  absolute  right  over  him,  since  it  can  hold  him  to  compensation.^ 
The  damage  occasioned  by  the  crime  may  be  either  material  or 
ideal  (or  both  at  the  same  time).  The  material  damage  was  the 
object  of  the  civil  law,  while  the  ideal  damage  was  the  object  of  the 
criminal  law,  and  its  indemnification  is  the  punishment.  This 
latter  is  accomplished  in  the  individual.^  Through  the  commis- 
sion of  the  crime  the  criminal  exhibits :  (1)  an  evident  absence  of 
lawful  intent  and  of  its  principle,  a  lack  of  consideration  of  moral 
values  and  of  the  statute  law,  a  lack  of  that  predominance  of 
reason  necessary  for  legal  relations  (the  legal  system)  ;  (2)  espe- 
cially, a  superabundance  or  too  great  strength  of  baser  impulses 
and  an  absence  of  harmony  between  these  impulses  and  the  re- 
quirements of  justice.  In  the  other  citizens  the  crime  produced 
(without  any  fault  of  theirs)  :  (1)  a  lack  of  respect  and  confidence 
in  the  criminal,  who  through  the  crime  has  become  disqualified 
as  a  member  of  the  civil  community ;  (2)  a  violation  and  destruc- 
tion of  their  lawful  will.  The  non-observance  of  the  statute  en- 
courages the  baser  impulses  of  the  others  to  the  like  commission 
of  wrongs.  Especially  is  harm  done  to  the  mental  attitude  of  re- 
spect for  the  law  on  the  part  of  the  party  wronged,  who  feels  that 
the  crime  is  a  disgrace  in  so  far  as  it  is  not  avenged  or  expiated. 
Accordingly  there  are  seven  proper  purposes  of  criminal  punish- 
ment :  ^  (1)  Moral,  (2)  Political  improvement  of  the  criminal, 
(3)  Restoration  of  the  respect  and  confidence  of  his  fellow-citizens 
towards  the  criminal,  (4)  Restoration  of  the  proper  mental  attitude 
of  regard  for  the  law^  on  the  part  of  the  citizens,  of  their  moral  and 
political  respect  for  the  law,  (5)  Restoration  of  the  honor  and  es- 
teem of  the  party  injured,  (G)  Restoration  of  his  mental  attitude  of 

2  P.  249.  "If  a  member  of  the  social  union  ...  in  contradiction  to 
himself  and  his  deliberate  avowal  "  (Weleker  bases  the  State  and  law  upon 
a  contractual  declaration  of  individuals)  "  violates  the  legal  relation  and 
inflicts  injury  upon  it,  then  it  is  the  first  condition  of  his  legal  existence, 
his  foremost  legal  duty  ...  to  make  the  greatest  possible  reparation." 

'  Cf.  p.  262.  "In  so  far  as  the  criminal  for  his  part  has  contributed  to 
the  lessening  of  respect  for  the  law  and  to  the  incitement  of  base  impulses, 
a  punishment  for  arousing  abhorrence  of  the  crime  and  deterring  from  its 
commission  is  legally  permissible  and  necessary." 

*  P.  265. 

448 


Chapter  V]      THEORIES    FROM    BENTHAM   TO    HERBART  [§  93 

regard  for  the  law,  (7)  Purification  of  the  State  from  the  com- 
pletely pernicious  member. 

There  is  no  merit  in  the  objection  raised  against  this  theory 
that  ideal  injury  can  not  always  be  shown,  and  does  not  invariably 
exist,  and  that,  for  this  reason,  it  is  improper  for  Welcker  to  place 
this  ideal  damage  on  an  equality  with  civil  law  damage,  which  is 
invariably  only  indemnified  when  it  is  proven  in  the  individual 
case.^  The  law  can,  and  to  a  certain  extent  must  be,  satisfied  with 
that  which  holds  good  in  the  majority  of  cases ;  a  further  search 
as  to  whether  the  result  in  question  holds  good  in  each  individual 
case  would  be  too  difficult,  and  indeed  would  often  fail  in  its  purpose. 
Moreover,  purely  civil  law  methods  of  reckoning  damage  are  de- 
rived from  fundamental  principles  of  custom  and  expediency ; 
it  is  certainly  not  to  be  denied  that  unpunished  commission  of  of- 
fenses (as  well  pointed  out  by  Welcker)  would  gradually  result  in 
the  dissolution  of  law,  morality,  and  the  State.  The  civil  law  tol- 
erates inexact  calculation  of  damage  only  because  it  is  an  evil  which 
is  difficult  to  avoid.  In  criminal  law,  however,  justice  »would  go 
completely  astray  as  a  result  of  a  too  exact  discussion  of  the  con- 
sequences of  the  individual  crime. 

But,  despite  this  answer,  Welcker's  doctrine  contains  a  fallacy. 
For,  although  he  maintained  a  moral  basis  for  the  law,  and  (though 
perhaps  not  with  sufficient  clearness)  designated  the  law  as  morality 
practiced  by  the  community  and  enforced  upon  the  individual,  yet 
he  conceives  punishment  not  as  a  necessary  reaction  of  morality 
against  the  immoral  act,  but  rather  as  based  upon  the  effect  upon 
the  criminal  himself,  upon  the  injured  parties,  and  upon  others. 
Now  this  unfortunate  effect  of  crime  upon  others  and  upon  the 
injured  parties  does  not  come  about,  as  Welcker  believes,  without 
their  own  fault.  It  is  rather  the  sign  of  a  morally  imperfect  con- 
dition, of  a  condition  not  yet  relatively  well  advanced,  if  the  commis- 
sion of  a  crime  or  the  wrong  done  by  the  crime  constitutes  an  incite- 
ment to  the  commission  of  a  crime.  The  ideal  damage  can  not  in 
every  case  be  charged  exclusively  to  the  account  of  the  criminal,  and 
consequently,  according  to  Welcker,  the  criminal  is  really  punished 
to  make  an  impression  upon  others.  The  attempt  made  by 
Welcker  to  base  the  punishment  directly  upon  the  wrong  is  also 

5  Thus  particularly  Heinze,  pp.  279,  280.  Tf  the  statement  in  answer 
to  this  objection,  given  in  the  text,  is  correct,  then  Welcker  is  relieved 
from  the  deductions  made  by  Ileinze,  viz.  tluit  accordinp:  to  Welcker's 
theory  the  criminal  statute  may  not  contain  definite  penalties  but  rather 
the  ascertainment  of  the  harm  must  be  left  to  the  judge. 

449 


§93]  HISTORY   OF   THE   THEORIES   OF   CRIMINAL   LAW      [Part   IT 

unfortuiiatt'.  Reformatory  punishment,  even  less  than  deterrent 
punishment,  is  not  to  be  derived  from  a  violation  of  a  right  (as 
Wclcker  would  in  part  derive  his  punishment).  How  the  State, 
if  it  may  not  directly  enforce  morality  upon  the  individual,*^  ac- 
quires by  the  wrong  of  the  criminal  the  right  of  reformation,  of 
compulsorily  restoring  confidence  in  the  criminal,  is  not  clear. 
Moreover,  the  results  of  the  principle  of  reformation  necessarily 
come  into  conflict  with  the  principle  of  producing  the  necessary 
effect  upon  others.  And  finally,  the  indemnification  of  the  so- 
called  ideal  damage  furnishes  a  perverted  criterion  of  the  punish- 
able character  of  an  act.  As  Heinze  correctly  points  out :  "  The 
disgust  of  the  citizens  at  the  act,  the  general  disapproval  of  the 
crime,  if  it  existed  also  for  the  punishment  (which  in  the  worst 
crimes  will  seldom  be  the  case),  would  bring  about  not  an  increase 
but  rather  a  lessening  of  the  punishment." 

Nevertheless,  only  a  slight  modification  was  necessary,  in  order  to 
attain  a  simple  and  true  path  for  the  foundation  of  criminal  law. 
Welcker  himself  (p.  262)  says :  "  At  the  most  "  (this  is  the  chief 
point)  "  through  general  disapprobation  directed  towards  the 
crime  "  and  contempt  of  the  criminal  there  must  be  aroused  and  re- 
stored .  .  .  the  sense  of  the  inviolability  and  sacredness  of  the  law"  ; 
and  it  is  also  quite  proper  to  recognize  the  punishment  and  com- 
pulsory payment  of  damages  as  functions  of  the  power  of  civiliza- 
tion, which  can  supplement  and  defend  itself.  It  is  quite  proper 
to  call  attention  to  the  fact  that,  in  public  punishment,  there  is 
always  contained  a  remnant  of  satisfaction  for  the  party  injured, 
and  therefore  punishment  and  pardoning  are  not  entirely  un- 
connected with  the  party  injured.  But  the  inclusion  of  punish- 
ment under  the  conception  of  indemnity  is  not  clear.  One  gen- 
erally thinks  of  indemnity  in  a  case  where  the  party  bound  to 
indemnify  has  an  advantage  or  has  enjoyed  an  advantage ;  and 
here,  at  any  rate,  is  involved  the  simple  idea  that  the  law  can  not 
tolerate  an  illegal  condition,  in  order  that  it  may  compel  the  crimi- 
nal to  make  restitution  or  to  give  an  equivalent.  On  the  contrary, 
the  foundation  of  a  duty  to  indemnify,  in  many  cases  in  which  the 
party  bound  to  indemnify  has  not  derived  the  slightest  benefit 
from  the  guilty  act,  and  never  even  intended  to  derive  any  benefit, 

«P.  31. 

">  One  may  merely  say  "of  the  criminal"  and  not  "of  the  crime."  In 
opposition  to  the  statement  of  Welcker  are  well  founded  the  objections 
of  Hepp,  II,  p.  766,  that  the  infamy  and  disgrace  of  the  criminal  are  little 
in  harmony  with  the  idea  of  his  reformation. 

450 


Chapter  V]     THEORIES  FROM  bextham  to  herbart  [§  94 

is  just  as  difficult  as  the  foundation  of  a  punishment.  For,  in 
concrete  cases,  the  rendering  of  indemnification  can  actually 
■constitute  a  very  mortifying  punishment,  and  it  is  very  possible 
that  in  such  cases  one  law  is  satisfied  with  the  indemnity,  while 
another  inflicts  punishment.  Here,  at  least,  the  chief  considera- 
tions for  excluding  punishment  do  not  govern. 

Hepp.  —  Hepp's  "  Theory  of  Civil  Justice  "  ^  ("  Theorie  der 
bürgerlichen  Gerechtigkeit  ")  is,  in  principle,  only  a  repetition  of 
Welcker's  theory  under  another  name.  The  offender  has  to  re- 
pair the  moral  damage  arising  from  certain  actions.  But  it  is  not 
clear  how  it  comes  about  that  this  compensation  consists  of  the 
evil  inflicted  as  punishment,  which  must  be  undergone  by  the  of- 
fender. It  must  therefore  be  that  the  strength  of  the  evil  example 
(which  in  any  case  is  not  to  be  denied,^  and  which  in  reality  rests 
upon  the  defective  moral  sense  of  those  who  are,  as  it  were,  led 
astray)  is  regarded  as  a  reason  for  this.  This  influence  of  the  ex- 
ample is  indeed  broken  by  evil  undergone  by  the  offender  as  a 
punishment.  In  individual  matters,  many  correct  statements  of 
Hepp  deserve  appreciation,  particularly  those  concerning  the  dis- 
tinction of  a  wrong  criminally  punishable  from  a  mere  breach  of 
morality  and  a  tort. 

§  94.  Changes  in  the  Absolute  Principle  of  Criminal  Law.  C.  S. 
Zacharia.  —  We  may  now  revert  to  a  consideration  of  the  evolution 
of  the  absolute  principle  for  the  basis  of  punishment. 

The  mistaken  attempt  of  C.  S.  Zacharia,^  to  give  to  the  abso- 
lute theory  of  retribution  an  interpretation  more  in  harmony  with 
the  sentiment  of  his  time,  deserves  little  attention.  He  regards 
the  crime  as  an  encroachment  upon  the  freedom  of  others,  and  ac- 
cordingly would  have  the  retribution  consist  of  punishment  by 
deprivation  of  freedom.-  This  deduction  rests  upon  a  simple 
confusion  of  conceptions :  in  the  crime,  the  encroachment  upon 
freedom  is  conceived  as  a  wrong ;  in  the  punishment,  freedom  is 
regarded  as  the  opposite  of  imprisonment.  With  such  manifest 
faults  there  is  no  profit  in  taking  up  the  unsatisfactory  and  arti- 
ficial provisions  relating  to  the  amount  of  punishment  and,  in  part, 
to  the  kind  of  punishment,  which  Zacharia  believed  must  be  de- 
duced from  this  fallacy. 

8  Hew,  II,  PP-  770-852.  «  Cf.  p.  779. 

1  Carl  Solomon  Zacharia,  "Anfangsgründe  des  philosophischen  Crini- 
inalreehts"  (1805);  "Strafgesetzbuchsentwurf"  (182(5).  Cf.  especially 
"Anfangsgründe",  §  42. 

-  But  from  the  law  of  necessity  of  the  State  other  punishments  are  allowed. 

451 


§  95]  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Part  II 

Henke.  —  The  modification  given  to  the  theory  of  retribution 
by  Ilenke,^  according  to  which  it  appears  practically  as  a  theory 
of  reformation,  is  more  attractive.  Punishment  is  to  him  the  nec- 
essary reaction  against  every  attempt  of  the  individual  to  tear 
himself  away  from  the  unity  of  the  community  and  to  a\oid  the 
law  whereby  the  community  orders  its  life.  There  exists  no  further 
proof  of  the  necessity  of  this  reaction ;  it  proclaims  itself  in  con- 
vincing tones  to  every  one  in  whom  there  is  developed  the  in- 
stincts of  humanity.  The  punishment  is  based  upon  a  moral 
impulse,  and  the  criminal  must  sooner  or  later  bring  it  upon  him- 
self. It  represents  the  cure  of  the  State,  which  again  attains 
its  health  through  the  civil  or  physical  death  of  its  diseased  member 
{i.e.  the  criminal),  or  through  his  undergoing  some  other  punish- 
ment. It  also  frees  the  criminal  from  internal  discord,  since  it 
improves  him  by  a  retribution  which  corresponds  to  the  inner 
guilt  and  is  in  its  effects  not  entirely  external.  This  reminds  us. 
of  Plato.  Henke  is  also  in  accord  with  Plato's  course  of  ideas  in 
requiring  the  punishment  to  bring  about  an  actual  moral  improve- 
ment of  the  criminal.  And  he  abandons  (justly)  the  idea  of  a  mere 
so-called  political  reformation  as  an  empty  abstraction.  But 
Henke  was  no  more  able  than  Plato  to  bring  into  actual  harmony 
the  retribution,  in  the  sense  of  a  restoration  of  the  "  majesty  of 
the  State  "  (the  law),  and  the  reformation  of  the  criminal.  It  is 
an  undeniable  truth  that  the  evil  is  eliminated  in  the  most  com- 
plete sense  if  the  offender,  because  of  a  change  of  heart,  recognizes 
the  supremacy  of  the  good  (and  of  law).  But,  while  the  general 
ideas  of  retribution  and  reformation  seem  to  dwell  in  such  peace 
and  harmony,  their  logical  results  are  in  violent  discord.  Punish- 
ment meted  out  up  to  the  time  of  reformation  is  not  retribution 
if  even  a  severe  offense  is  quickly  followed  by  the  reformation  of 
the  criminal,  and  it  is  more  than  retribution  if  the  stubbornness  of 
the  criminal,  even  in  a  minor  transgression,  causes  the  reformation 
to  be  long  delayed. 

§  95.  Combination  of  the  Absolute  and  Relative  Purposes.  — 
More  appro^"aI  has  been  given  to  the  combinations  of  the  theory  of 

3  H.  W.  E.  Henke,  "Ueber  den  Streit  der  Strafreehtstheorien "  (1811) ; 
"Lehrbuch"  (1815);  "Handbuch  des  Criminabechts  und  der  Criminal- 
politik",  I  (1823),  especially  pp.  9,  10,  146  et  seq.  In  his  "Geschichte 
des  peinliehen  Rechts  in  Deutschland".  II,  pp.  362  et  seq..  Henke  had 
originally  declared  himself  against  every  absolute  theory,  and  in  the 
work  "Ueber  den  gegenwärtigen  Zustand  der  CriminaLrechtswissenschaft 
in  Deutschland"  (1810),  he  substantially  embraced  the  theory  of  Fichte 
(pp.  15  et  seq.). 

452 


Chapter  V]      THEORIES    FROM   BENTHAM   TO    HERBART  [§  95 

retribution  with  a  theory  that  is  relative.  This  combination  takes 
place  in  the  view  that  punishment  is  given  its  legal  basis  in  nec- 
essary retribution  ;  while  the  consequent  justification  for  penalties 
may  be  used  only  in  so  far  as  it  serves  to  attain  rational  future  pur- 
poses, or,  if  the  attainment  of  the  single  purpose  is  not  allowed  to 
prevail  exclusively,  only  in  so  far  as  it  is  necessary  for  the  main- 
tenance of  the  legal  system.  This  coalition  of  the  theory  of  retri- 
bution with  a  certain  indefinite  theory  of  necessary  defense  has 
found  favor,  especially  in  France  and  among  those  commentators 
who  are  strongly  influenced  by  the  French  spirit.  It  has  also 
been,  in  truth,  equally  the  predominating  influence  in  legislative 
commissions  and  legislative  assemblies.  The  judicial  practice 
of  Germany,  however,  dominated  by  trained  jurists,  has  almost 
universally  condemned  such  a  coalition.  There  is  good  reason 
for  both  positions.  While  the  form  in  which  it  is  advanced  is 
theoretically  untenable,  this  coalition  in  practice  furnishes  the 
most  correct  results ;  results  which  actually  harmonize  with  those 
of  a  theory  which  professes  to  find  its  practical,  direct,  and  evi- 
dent conclusions  only  as  the  reverse  side  of  a  principle  absolute  in 
itself. 

Rossi.  —  The  first  and  ablest  of  the  supporters  of  this  coalition 
was  Rossi. ^  He  regarded  the  retribution  of  evil  with  evil  as  an  un- 
qualified and  firmly  established  mandate  of  justice.-  But  since 
the  duty  of  the  civil  community  consisted  merely  in  maintaining 
the  legal  system,  it  was  not  incumbent  upon  it  to  give  complete 
and  absolute  effect  to  this  mandate.  It  gave  effect  to  it  only  in  so 
far  as  seemed  necessary  for  the  maintenance  of  the  legal  system. 
Thus  the  consideration  of  utility  restricted  the  exercise  of  justice, 
but  it  was  not  its  basis.^  And  so,  quite  correctly,  the  propriety 
or  impropriety  of  the  punishment  for  acts  contrary  to  morality  was 
discussed  with  a  view  to  the  fact  that  while  human  justice  claims 
the  right  to  punish  such  acts,  it  has  to  reckon  with  the  possibility 
of  error  and  the  diflRculty  of  certainty."* 

1  Rossi,  "Traite  du  droit  penal"  (Paris  et  Geneve,  1829),  T,  pp.  125-289. 

2  This  statement  is  axiomatic  :    "eile  est.  parce  qu'elle  est",  p.  289. 

3  "Le  but  de  la  justice  humaine  est  exterieur  et  borne.  C'est  encore 
la  justice  absolue,  mais  la  justice  absolue  applique  seulenient  aux  viola- 
tions de  nos  devoirs  envers  les  tiers,  en  tant  que  ces  violations  troublent 
d'une  maniere  sensible  I'ordre  social."  p.  290:  "La  repression  des 
delits  par  la  peine  n'est  done  legitime  qu'a  la  condition  que  la  peine  s'ap- 
pliquera  aux  eoupables,  et  aux  coupables  seulement  .  .  .  Des  qu'on 
depasse  d'un  atome  le  mal  merite,  il  n'y  a  plus  justice :  on  retombe  dans 
le  Systeme  de  I'interet." 

*  Cf.  1,  pp.  297,  303. 

453 


§  Of)]  IIISTOUV    OF    THE    THEORIES    OF    CRIMINAL    LAW       [PAKT    II 

Haus/'  Ortolan/'  and  Gabba  '  merely  adopted  tins  theory  in 
diU'erent  language.  The  same  holds  true  of  Von  Preuschen,* 
Mohl/'Mittermaier/"  and  Henrici.'^  But  these  writers  made  the 
theory  less  clear,  since  they  ])laced  primary  stress  upon  the  utility 
of  the  punishment  and  secondary  stress  upon  justice,  which  they 
desire  to  be  the  preliminary  condition  of  punishment.  IMittermaier 
had  perhaps  specially  in  view  the  numerous  punishments  for  of- 
fenses against  the  police  measures  and  other  coercive  penalties, 
which  are  practically  indispensable  but  which  are  not  readily  justi- 
fiable from  the  standpoint  of  absolute  and  eternal  justice ;  hence 
he  shows  traces  of  the  thought  that,  under  some  circumstances,  a 
punishment  can  be  justified  b}'  the  fact  of  ha\'ing  been  threatened. 
Henrici  ^^  assumes  at  the  outset  an  independent  position  for  the 
principle  of  the  right  of  punishment,  since  he  begins  with  the 
relative  theory  of  defense  or  maintenance  of  the  legal  order,  and  as 
opposed  to  this  principle  he  regards  absolute  justice  as  a  restricting 
principle.  As  a  matter  of  fact,  it  all  amounts  to  one  and  the  same 
thing,  —  if  one  goes  only  so  far  as  the  two  principles  are  in  harmony^ 
one  may  consider  an  individual  question  either  by  principle  A  or 
by  principle  B. 

In  the  case  of  Rossi,  as  will  be  conceded,  there  is  the  danger  of 
transferring  punishment  primarily  and  perhaps  too  much  to  the 
realm  of  pure  morality ;  in  the  case  of  Mittermaier  and  Henrici, 
there  is  especially  the  danger  that  punishment  as  a  measure  of  ex- 
pediency will  be  extended  to  many  things  which  in  fact  do  not 
deserve  punishment,  and  that  it  will  be  difficult  for  justice  to 

5  "Principes  generaux  du  droit  penal  Beige"  (1869),  pp.  26  et  seq.: 
p.  29 :  "La  peine  est  un  mal  qui  est  rendu  pour  un  mal;  eile  retombe 
sur  le  eoupable  parce  qu'il  a  enfreint  la  loi,  et  parce  que  cette  infraction 
merite  la  souffrance  qu'on  lui  fait  eprouver.  Le  pouvoir  social  a-t-il 
le  droit  de  punir?  Pour  qu'il  ait  ce  droit,  il  faut  que  la  peine  soit  un 
moyen  propre  ä  realiser  le  but  qui  lui  est  assigne.  II  faut  ensuite  qu'elle 
soit  un  moyen  de  protection  necessaire." 

8  Ortolan,  "Elements  du  droit  penal",  I,  pp.  176  et  seq.  According- 
to  page  187,  society  says  to  the  one  whom  it  punishes  and  who  raises  a, 
question  concerning  the  evil  inflicted  upon  him:  "Tu  le  merites",  and 
as  to  the  further  question  how  this  concerns  the  society,  it  answers : 
"It  has  to  do  with  my  maintenance." 

'  "II  pro  ed  il  eontro  nella  questione  della  pena  di  morte"  (1866),  p.  52. 

*  "Versuch  über  die  Begründung  des  Strafrechts"  (1835),  especially 
pp.  37  et  seq. 

^  "lieber  den  Zweck  der  Strafe"  (1837),  especially  pp.  36  et  seq. 

""  "Neues  Archiv  des  Criminalrechts "  (1836),  pp.  403  et  seq.  Mitter- 
maier in  the  14th  edition  of  Feuerbach's  "Lehrbuch"  prepared  by  him, 
§  20  6. 

"  "Ueber  die  Unzulänglichkeit  eines  einfachen  Straf rechtsprincips " 
(1839). 

12  P.  78. 

454 


Chapter  V]      THEORIES   FROM   BENTHAM   TO   HERBART  [§96 

cause  the  legislator  to  desist  from  using  such  measures  of  expedi- 
ency. But  there  is  little  importance  in  this  distinction.  However, 
the  matter  is  completely  confused  by  Henrici's  observation  that 
justice  (i.e.  absolute  justice)  '^  must  also  guard  the  legislator  against 
doing  too  little  and  against  giving  way  to  unseasonable  pity  in 
respect  to  crimes  deserving  the  death  penalty.  Here,  according 
to  Henrici's  conception,  absolute  justice  is  also  advanced  simply 
as  a  constitutive  principle,  without  being  limited  by  ideals  of 
utility  and  humanity.  If  this  is  permissible,  then  the  choice  be- 
tween the  punishments  of  absolute  justice  (sentiment)  and  punish- 
ments based  on  considerations  of  utility  or  relative  necessity  be- 
comes merely  a  matter  of  sentiment. 

This  criticism  is  manifestly  ai)plicable  to  the  views  of  von  Wieck,'^ 
who  substitutes  for  the  general  purpose  of  maintenance  of  the  legal 
system,  the  special  purposes  of  deterrence  and  reformation,  and, 
indeed,  would  give  attention  to  these  onl\'  in  so  far  as  they  do  not 
do  injury  to  the  chief  purpose  of  the  punishment :  retribution 
through  the  infliction  of  suffering.  It  should  be  noticed  that 
von  Wieck,  who  uniformly  adopts  a  positive  Christian  attitude, 
seems  to  have  a  sense  of  the  irreconcilability  of  the  infliction  of 
suffering  and  Christian  ethics.  The  uncertain  assertion  that  the 
State  in  its  existing  condition,  where  evil  is  not  overdone,  may 
exercise  mercy  and  charity  only  in  so  far  as  it  may  be  done  without 
material  prejudice  to  punishment,  confirms  rather  than  abolishes 
this  contradiction. 

§  96.  Herbart's  Retribution  Theory  of  Esthetic  Judgment.  — 
Herbart  ^  sought  to  give  to  the  absolute  theory  of  retrilnition  a 
modification  which  was  really  new  although  certainly  not  fortunate. 
In  many  respects  he  reminds  one  of  Plato  and  Leibnitz.  Retri- 
bution is  contemplated  and  demanded  as  an  fcsthetic  judgment. 
As  law  is  only  the  means  to  eliminate  the  aesthetically  offensive 
conflict  of  numerous  individual  wills,  so  punishment  rests  on  the 
axiom  :  an  act  for  which  there  has  been  no  retribution  is  offensive. 
In  Plato  the  punishment,  merely  as  an  ideal,  assists  in  completing 
the  harmony  of  the  universe,  and  therefore,  apart  from  a  few  ex- 
treme cases,  is  also  regarded  as  a  benefit  for  the  party  punished, 
who  thereby  is  reinstated  in  the  universal  harmony,  thus  becoming 

"  P.  85. 

"  "Ueber  Strafe  und  Besserung"  (1853). 

1  Cf.  his  "Werke",  ed.  by  Ilmicnslcin,  8,  p.  318,  9,  pp.  387  ct  seq. 
Cf.  also  Geyer,  "Geschichte  und  System  der  Rechtsphilosophie"  (1863), 
pp.  127  et  seq. 

455 


§96]  HISTORY   OF  THE  THEORIES   OF   CRIMINAL   LAW      [Part   II 

better.  But  in  the  aesthetic  judgment  of  Ilerlmrt,  we  find  our- 
selves immediately  upon  the  real  and  practical  ground  of  the  pres- 
ent criminal  law,  and  hence  it  is  especially  noteworthy  that  Ilerhart 
has  but  little  knowledge  or  interest  in  the  reformation  of  the 
criminal.^  And  Herbart's  idea  of  punishment  (which  may  quite 
properly  include  death  and  life-long  imprisonment)  is  opposed, 
even  from  his  aesthetic  standpoint,  to  that  lofty  idea  which  does 
not  desire  the  death  of  the  sinner,  but  rather  the  suppression  of 
evil  by  means  of  good.  It  is  at  least  a  "  petitio  principii  "  to 
maintain  that  the  former  is  aesthetically  more  agreeable  than  the 
latter. 

Herbart  was  himself  sensible  of  this.  He  concedes  that  the  ret- 
ribution of  evil  with  an  evil  merely  for  its  own  sake  falls  within 
the  sphere  of  malevolence  ("  Uebelwollen  ")  and  therefore  punish- 
ment requires  a  motive.^  Such  motive  is  furnished  it  by  the 
ethical  ideas  of  perfection,  benevolence,  and  justice,  and  especially 
the  ideas  of  the  improvement,  advancement,  and  security  of  the 
entire  people.  Thus  ultimately  Herbart's  theory  becomes  merely 
a  reproduction,  only  under  another  name,  of  Rossi's  "  coalition 
theory  "  ;  i.  e.  as  against  the  criminal,  punishment  is  based  upon 
the  idea  of  retribution,  but  the  community  may  make  use  of  this 
retribution  only  in  so  far  as  its  purposes  require  it,  or  (speaking 
rather  in  the  sense  of  Herbart)  in  so  far  as  its  purposes  make  it 
seem  desirable.  For  a  strong  legal  system  with  as  free  development 
of  the  individual  as  possible  was  not  the  object  of  Herbart's  State. 
An  administrative  system,  a  system  of  rewards  and  a  system  of 
mutual  benevolence,  could  necessarily  make  a  far  more  extensi\'e 
coercion  of  the  individual  than  the  legal  system  would  require. 
"  It  is  possible  to  exercise  discipline  wherever  it  advances  welfare, 
and  wherever  the  general  recognition  that  the  punishment  produces 
no  strife  can  be  presumed  " ;  and  "  the  legislator  may  discipline 
where  the  judge  may  not."  ^  In  other  words,  where  general  senti- 
ment would  not  be  injured  by  the  punishment,  there  may  punish- 
ment be  inflicted,  and  at  all  events,  in  this  case  where  the  positive 
law  so  desires. 

Ultimately  this  leads  to  pure  positivism.  It  is  in  accordance 
with  the  aesthetic  feeling  that  the  laws  be  obeyed,  and  therefore,  in 

^  "Aphorismen  zur  praktischen  Philosophie",  "Werke",  9.  p.  418. 
"Legal  reformation  of  the  party  punished ?  No!  Rather,  since  unfor- 
tunately this  is  often  impossible :   legal  reformation  of  the  communitj-." 

»  "Praktische  Philosophie"  (I),  "Werke",  8,  pp.  44,  45. 

^  "Werke",  8,  p.  87. 

456 


Chapter  V]      THEORIES    FROM   BENTHA-M   TO   HERBART  [§  96 

accordance  with  them,  if  they  so  desire,  puiiisliment  be  inflicted.'^ 
This  is  the  standpoint  of  the  most  absohite  modern  liberalism, 
which  is  no  longer  able  to  distinguish  justice  and  law.  There  is 
no  doubt  that  Herbart  was  far  removed  from  this  adoration  of  the 
law  as  such.  A  law  may  have  just  come  into  being,  upon  the  vote 
of  a  bare  majority,  but  afterwards  we  tend  to  regard  it  as  an  idol 
secure  from  criticism.  But  the  outcome  of  the  theory  very  clearly 
revealed  the  impracticability  of  the  aesthetic  judgment  as  a  means 
of  reaching  sure  ground  for  criminal  law.  Essentially  correspond- 
ing with  the  categorical  imperative,  Herbart's  so-called  aesthetic 
judgment  exceeds  it  in  indefiniteness.  According  to  the  cate- 
gorical imperative,  punishment  can  be  inflicted  only  if  our  con- 
science unconditionally  demands  it ;  according  to  the  aesthetic 
judgment,  pimishment  may  be  inflicted  if  our  conscience  is  not 
expressly  opposed  to  it. 

It  is  impossible  here  to  take  up  the  aphorisms  concerning  crimi- 
nal law  ^  which  are  more  or  less  closely  connected  with  Herbart's 
fundamental  conceptions.  But  though  they  include  some  well 
thought  out  statements,  as  a  whole,  they  demonstrate  that  the 
philosopher  knew  little  about  criminal  law,  the  subject  upon  which 
he  was  philosophizing." 

Geyer.  —  Herbart's  philosophy  of  criminal  law  has  found  few 
followers.  It  is  best  and  most  skillfully  defended  by  Geyer.  But 
even  this  defense,  remarkable  as  it  is  for  its  many  excellent  and 
apt  statements,^  shows  that  an  effective  defense  of  Herbart's  prin- 
ciple is  not  possible  for  any  one  who  does  not  possess  a  complete 
knowledge  of  the  subject.  In  Geyer,  the  maxim  :  ^  "  The  act  for 
which  no  retribution  is  made  is  offensive  ",  again  changed  over 
completely  to  the  idea  of  simple  retribution.  But  this  retribution, 
although  it  is  fundamentally  contrary  to  its  nature,  according  to 
Geyer  admits  of  the  limitation:   "The  giving  of  pain  is  oft'en- 

^  P.  85:  "To  sum  up,  the  foregoing  gives  rise  to  a  sharp  distinction 
between  the  possibility  of  being  punished  and  the  possibilily  of  punishing. 
That  any  one  should  be  punished  is  only  possible  because  he  has  previously 
done  something  from  which  the  punishment  recoils  upon  him.  .  .  .  Whether 
any  one  can  punish  depends  upon  a  new  condition,  whether  or  not  there 
is  present  a  motive,  that  the  punishment  be  merely  a  means  and  not  an 
end." 

«  "Werke",  8,  pp.  415-418. 

^  Thus  e.g.  the  erroneous  statements  concerning  "dolus"  and  "culpa." 

*  Cf.  especially  the  article:  "Ueber  den  Begriff  des  Verbrechens"  in 
//rtimerrs  "Oesterreieh.  Vierteljalirsschrift  für  Rechts-  und  Staatswissen- 
schaft" (Vol.  9,  1862),  pp.  215-253,  and  Geyer  in  Von  IJoltzcndorJf's 
"Reehtsencyclopädie",  Vol.  I. 

^  Cf.  the  article  above  cited,  p.  219. 

457 


§  !)(>]  HISTORY    OF   THE   THEORIES    OF    CRIMINAL    LAW       [Paut   II 

sive."^"  Therefore  the  State  must  punish,  as  sueh,  all  inten- 
tional giving  of  pain,  and  even,  as  Geyer  later  sets  forth,  every 
giving  of  pain  caused  by  negligence.  However,  the  aesthetic 
judgment  is  a  categorical  imperative  which  permits  of  treatment. 
Consequently  the  maxim  "^Minima  non  curat  praetor"  takes  root ; 
a  too  extensive  criminal  power  results  in  numerous  evil  condi- 
tions ;  accordingly  the  spirit  of  the  people  and  the  force  of  existing 
circumstances  must  be  recognized. ^^  Under  some  circumstances 
the  obligation  to  indemnify  can  arise  in  the  place  of  punishment.^^ 
Since  indemnification  under  some  circumstances  is  also  required 
of  those  to  whom  there  is  attached  no  guilt,  this  is  indeed  a 
complete  rejection  of  the  idea  of  retribution,  of  {esthetic  judg- 
ment. It  is  impossible  for  it  to  be  otherwise.  As  soon  as  one 
comes  to  the  consideration  of  individual  details,  it  is  only  by  a 
rejection  of  the  ideas  of  retribution  that  Kant's  absurdities  may 
be  avoided. 

According  to  Herbart's  and  Geyer's  conception,  the  evil  act  is 
a  discord.  Would  one  be  less  sensitive  to  one  discord,  by  having 
a  second  one  result  from  it  ?  Punishment,  however,  should  furnish 
evil  or  pain  to  the  criminal.  If  one  schoolboy  whom  another  has 
struck  cries,  this  cry  does  not  become  a  pleasant  sound  because  the 
second  boy  whom  the  schoolmaster  has  chastised  for  his  offense 
also  cries.  Of  course,  for  one  who  takes  an  interest  in  pedagogical 
discipline,  it  may  be  a  pleasant  sensation  to  know  that  discipline 
was  applied  in  this  case.  This  is  exactly  the  case  with  punishment. 
If  we  conceive  punishment  chiefly  as  an  infliction  of  pain,  as  an 
evil,  then  this  evil  can  lose  its  repulsive  character  only  if  it  becomes 
a  means  of  attaining  some  benefit.  And  if  it  must  be  retribution, 
would  it  not  be  the  best  retribution,  and  also  one  to  be  recognized 
as  such  by  the  State,  if  the  criminal  in  the  commission  of  the  act 
brought  down  upon  himself  a  mortifying  pain  or  damage,  without 
obtaining  an  advantage  ^^  at  all  ?     Geyer  ^^  meets  this  objection 

1»  Cf.  pp.  225  et  seq.,  especially  p.  228. 

"  P.  231. 

12  Binding's  arguments  ("Die  Normen  und  ihre  Uebertretung",  I, 
pp.  207  et  seq.)  concerning  the  diametrical  opposition  of  indemnifieation 
and  punishment  are  properly  opposed  to  a  theory  which  would  found 
punishment  upon  retribution  or  unconditional  «sthetie  approval.  But 
it  is  different  if  the  punishment  is  not  founded  upon  retribution,  or  if 
the  matter  is  not  viewed  from  the  standpoint  of  the  positive  law  but  rather 
historically  and  politically. 

1'  Common  opinion  will  always  regard  this  as  retribution  in  its  eminent 
sense. 

»  P.  223. 

458 


Chapter   Vj      THEORIES    FROM    BENTHAM   TO    HERBART  [§  96 

with  the  statement  that  the  evil  must  come  about  as  "  retribution." 
But  is  it  not  in  accord  with  the  essential  idea  of  retribution,  that  it 
is  more  perfect  the  less  it  requires  artificial  preparation?  Every 
well-constructed  tragedy  gives  evidence  of  the  correctness  of  this 
refutation  of  Geyer.  Careful  consideration  certainly  shows  that 
these  conceptions  of  retribution  and  punishment  are  not  satisfac- 
tory. 


459 


Chapter  VI 

CRIMINAL  THEORIES  IN   GERMANY  FROM   HEGEL  TO 
BINDING 


§  97.  Theory  of  the  Negation  of 
Wrong.     Hegel. 

§  98.  Modern  Theological  Ten- 
dencies. Stahl.  Schleier- 
macher.    Daub. 

§  99.  Later  Developments  of 
Hegel's  Theory.  Tren- 
delenburg. Abegg.  Heff- 
ter.  Köstlin.  Merkel. 
Hälschner.    Berner.    Kitz. 


§  100.  Combination  of  the  The- 
ories of  Hegel  and  Fichte. 
Heinze. 

§  lOL  Von  Kirchmann.  Schopen- 
hauer. Diihring.  E.  von 
Hartmann.     Von  Liszt. 

§  102.  Binding's  Theory  of  the 
Effect  of  Disobedience  to 
a  Rule.     Laistner. 


§  97.  Theory  of  the  Negation  of  Wrong.  Hegel.  —  In  contrast 
to  the  foregoing  theories,  the  theory  of  Hegel  reveals  a  distinct 
step  in  advance.^  To  Hegel,  punishment  is  simply  a  negation  of 
wrong,  and  wrong  is  the  negation  of  right.  Of  course,  wrong  as 
opposed  to  right  (i.e.  as  opposed  to  the  general  system  of  right, 
which  abstractly  regarded,  cannot  be  harmed)  is  in  itself  a  nullity ; 
but  punishment  has  to  bring  about  this  non-reality  of  wrong  in 
the  individual  will  of  the  criminal  and  also  to  restore  therein  the 
right.  This  gives  rise  to  a  distinction  of  reactions  corresponding 
to  the  various  kinds  of  wrong,  —  simple  wrong  {i.e.  "  unbefangene 
LTnrecht  "),  fraud  and  crime.  The  first  of  these  {i.e.  "  unbe- 
fangene Unrecht  ")  is  not  that  which  exists  in  the  will  of  those 
who  oppose  the  right,  —  it  refers  rather  to  cases  in  which  the  right, 
in  abstract,  is  desired,  but  in  the  concrete  case  is  confused  with 
the  wrong.  This  is  the  case  in  civil  wrongs.  In  fraud  ("  Betrug  ") 
the  appearance  of  right  is  maintained,  but  under  this  appearance 
the  wrong  is  desired.  In  crime,  the  right  is  both  objectively 
and  subjectively  repudiated  by  the  offender.  Here  it  is  also  neces- 
sary to  exhibit  externally  the  non-reality  of  the  wrong  by  means 

1  "Grundlinien  der  Philosophie  des  Rechts",  ed.  by  Gans  (3d  ed., 
1854),  US2etseq. 

460 


Chapter  VI]  CRIMINAL  THEORIES  IN  GERMANY  [§  97 

of  punishment.  Therefore  punishment  from  its  very  nature  can 
not  be  termed  an  evil.  As  Hegel  expressly  states,  the  infliction 
of  one  evil  merely  because  another  exists  is  irrational.  "  The 
undoing  of  crime  is  retaliation  to  the  extent  that  it  is  conceived  as 
an  injury,  and,  conformably  to  its  being,  crime  has  a  definite 
quantitative  and  qualitative  extent,  and  the  same  thing  also 
holds  true  of  its  negation.  But  this  contemplated  identity  is  not 
parity  in  the  specific  character  of  the  injury,  but  rather  in  its 
abstract  character ;  it  is  sameness  in  accordance  to  value."  "In 
crime,  when  the  infinity  of  the  deed  is  the  fundamental  issue,  the 
mere  specific  external  elements  tend  to  vanish,  and  the  parity 
remains  merely  the  fundamental  rule  for  the  essential,  i.e.  for 
what  the  criminal  deserves,  but  not  for  the  specific  external  form 
of  this  which  is  deserved.  It  is  only  according  to  their  specific 
form  that  theft,  robbery,  fines,  imprisonment,  etc.,  are  absolutely 
unlike,  but,  according  to  their  value,  to  their  general  capacity 
to  be  simply  injuries  they  are  capable  of  comparison."  In  other 
words,  the  essence  of  crime  is  rebellion  against  the  general  prin- 
ciple of  right ;  and  therefore  the  question  by  what  external  means, 
conformably  to  quality  and  quantity,  should  this  rebellion  become 
expressed  as  a  non-reality  is  not  decided  by  the  principle.  First 
the  "  idea  as  to  value  "  fixes  the  ratio  of  comparison  between  the 
act  and  the  means  of  its  elimination.  Accordingly  (as  is  not 
developed  however  by  Hegel)  the  dimension  and  the  form  of  the 
punishment  depend  upon  the  "  idea  as  to  value  ",  i.e.  upon  the 
valuation  in  a  certain  State  and  at  a  certain  time.  These  ele- 
ments of  dimension  and  form  would  not  be  governed  by  the  prin- 
ciple.^ Furthermore,  it  is  quite  conceivable  that  the  declaration 
of  the  non-reality  of  the  wrong  may  not  be  an  affair  of  the  State. 
It  can  take  place  in  the  form  of  the  vengeance  of  the  party  injured. 
This,  however,  is  imperfect  and  easily  becomes  pernicious,  since 
the  negation  of  wrong  easily  becomes  confused  with  wrong  or  can 
degenerate  into  wrong,  when  in  the  form  of  vengeance.^ 

2  Cf.  the  statement  in  §  63  concerning  the  conception  of  "value." 
Supplement  to  §96:  "How  any  crime  may  be  punished  is  not  to  be 
determined  by  these  ideas  {i.e.  as  to  value),  but  positiv(>  provisions  are 
necessary."  Only  in  the  case  of  murder,  according  to  §  101.  a  different 
condition  exists.  '  "Since  the  entire  range  of  existence  is  comprehended 
in  life,  therefore  punishment  cannot  consist  in  a  valuation  which  cannot 
exist,  but  can  consist  only  in  deprivation  of  life."  Here  is  seen  an  effect 
of  the  traditional  view,  knd  the  "retribution"  view,  the  idea  of  which 
has  not  entirely  disappeared. 

3  §§  102,  220. 

461 


§  97]  HISTORY   OF   THE   THEORIES   OF   CRIMINAL   LAW      [Part   II 

This  theory  which,  because  of  its  frequently  abstruse  method 
of  expression/  is  not  sufficiently  appreciated  by  many,  has,  at 
any  rate,  one  merit.  As  appears  from  the  deduction  given  above, 
it  can  be  reconciled  to  history.  It  is  able  to  recognize  in  revenge 
the  preliminary  step  towards  punishment  inflicted  by  the  State. 
It  is  able  to  regard  the  numerous  forms  of  positive  definite  punish- 
ment as  phenomena  in  which  its  principle  manifests  itself  without 
becoming  inconsistent.  But  its  most  important  service  is  that  it 
does  not  conceive  punishment  as  an  evil,  i.e.  as  something  which 
has,  as  its  chief  purpose,  the  creation  of  an  evil  for  the  criminal. 
Here,  for  the  first  time,  from  the  standpoint  of  the  absolute  theo- 
ries, there  is  actually  eliminated  the  contradiction  between  moral- 
ity (especially  Christian  morality)  and  punishment  inflicted  by 
the  State  (not  merely  pedagogical  discipline). 

The  attempt  is  also  made  not  merely  to  justify  punishment  as 
a  necessary  standard  for  people  as  a  whole,  for  the  community, 
but  also  to  show  that  punishment  is  also  required  by  the  indi- 
vidual characteristics  of  the  offender  himself.  Punishment  is 
even  a  right  of  the  criminal.  In  him  there  exists  that  universal 
reason  which  controls  the  punishment.  Thus  in  the  punishment 
"  the  criminal  is  respected  as  a  rational  being."  ° 

This  last  statement,  indeed,  sounds  almost  like  mockery,  and 
seems  calculated  to  bring  Hegel's  theory  into  ridicule.  As  ad- 
vanced, it  is,  moreover,  incorrect.  The  criminal  does  not  recog- 
nize that  universal  reason  which  obtains  in  right  and  in  positive 
law.  At  least  this  is  the  case  with  that  hardened  class  of  criminals 
who,  as  it  were,  engage  in  war  with  the  rest  of  humanity.  But 
the  principle  approaches  the  truth.  Even  with  hardened  crimi- 
nals an  enlightened  criminal  law  proceeds  differently  than  with 
a  beast  which  threatens  our  life  or  property,  or  with  the  animal 
which  we  sacrifice,  perhaps  in  a  painful  manner,  for  purposes  of 
humanity.  Compared  with  these  last-mentioned  methods  of 
procedure,  punisliment  alwaj's  honors  the  reason  in  the  criminal. 
It  ought  not  to  be  said  that  the  reason  in  the  criminal  demands 
the  punishment.  It  must  be  said  that,  strictly  taken,  the  criminal 
severs  himself  from  lawful  society.  Therefore  he  can  be  dealt 
with  without  consideration,  and  so  it  was  done  in  the  initial  steps 
of  legal  development.     The  criminal  lost  all  rights.     The  moderate 

••  In  the  foregoing  presentation  this  has  in  part  been  translated  into 
ordinary  language  so  as  to  be  more  easilj^  understood. 
'  P.  l36. 

462 


Chapter  VI]  CRIMINAL  THEORIES  IN  GERMANY  [§  97 

punishment  of  later  times  is  thus  a  benefit  to  him.  The  bond  of 
legal  society  is  still  regarded  as  existing  in  respect  to  the  criminal, 
and  thus,  as  a  matter  of  fact,  he  is  respected  as  a  rational  being. 
Here  again  we  have  Fichte's  ideas,  viz.,  that  to  be  punished  and  not 
to  be  treated  as  one  absolutely  without  rights  is  an  important  right. 

Hegel's  distinction  between  civil  wrong  and  punishable  wrong 
also  approaches  the  truth.  In  the  first  place,  however,  the  inter- 
mediate grade  of  wrong,  Hegel's  fraud  ("  Betrug  "),  must  be  re- 
jected. This  is  apparently  the  result  on  one  hand  of  his  well- 
known  dialectical  division  into  threes,  and  the  result  on  the  other 
hand  of  the  observation  that  in  social  intercourse  the  maxim 
"  Invicem  sese  circumscribere  licet "  can  apply  and  therefore 
cunning  fraud  be  immune  from  punishment.  This  latter,  how- 
ever, is  so  only  to  a  limited  extent  and  not  generally.  In  the 
second  place,  it  can  only  be  conceded  that  punishment  generally 
limits  itself  to  intentional  wrong.  But  by  no  means  every  inten- 
tional wrong  is  punished.  There  are  also  cases  of  civil  wrong  where 
malicious  intention  is  present  and  cases  of  punishable  wrong  where 
it  is  not  present.  There  can,  however,  be  no  punishable  wrong 
without  there  being  some  will  (although  perhaps  only  indirectly) 
responsible  therefor.  The  starting  point  for  the  question,  which 
is  still,  in  our  times,  so  much  discussed  as  to  the  distinction  between 
wrong  that  is  punishable  and  wrong  that  is  not  punishable,  is 
contained  in  Hegel's  remarks. 

The  dialectical  transformation  of  right  in  punishment  is  more 
unsatisfactory.  Right  is  not  an  active  principle.  A  right  does 
not  say :  you  must  do  this ;  it  says  merely :  you  may  do  this.  If 
the  injured  party  (or  the  State)  has  the  right  to  punish,  yet  he  is 
not  obliged  to  punish.  The  duty  to  punish,  which,  according 
to  Hegel,  apparently  must  be  received  along  with  the  right  to 
punish  (at  least  where  the  State  is  concerned),  requires  a  special 
demonstration.  It  does  not  follow  from  the  necessity  of  self- 
preservation  of  the  law\  From  this  the  mere  deduction  may  be 
made  that,  if  one  entitled  thereto  desires,  a  condition  actually 
contradictory  to  law  shall  yield  to  a  lawful  condition.  It  necessa- 
rily entails  nothing  more  than  a  compulsory  restoration  dependent 
upon  the  pleasure  of  the  one  entitled  —  as  far  as  such  a  thing  is 
possible.  A  duty  can  be  derived  only  by  seeking  out  a  moral 
basis  in  the  right.  A  right  in  itself  is  not  active,  but  morality 
under  some  circumstances  must  become  acti\'e  or  cease  to  be 
morality.     Thus  there  is  a  flaw  in  Hegel's  deduction,  which  also 

463 


§  Ü<S]  HISTOUY   OK   THE   THEORIES   OF   CRIMINAL   LAW      [Pakt   II 

involves  an  uncertainty.  Punishment  is  not  a  purely  logical  out- 
come of  the  conception  of  wrong.  If  this  were  so,  as  Hegel  indeed 
believed,  it  would  not  be  permissible  for  the  State  to  refrain  from 
punishment.  There  could  not  exist  that  pardoning  power  ^ 
permitted  by  Hegel ;  for  a  result  conformable  to  the  principle  is 
inevitable. 

§  98.  Modern  Theological  Tendencies.  Stahl.  —  The  efl'ects 
of  Hegel's  philosophy  of  criminal  law  have  been  far-reaching. 
Many  of  the  most  eminent  students  of  the  subject  have  been 
and  still  remain  under  its  influence.  As  the  modifications  of 
Hegel's  theory  are  represented  chiefly  by  theorists  who  are  now 
living,  it  is  appropriate  to  turn  ovir  attention  first  to  that  theologi- 
cal character  which  this  theory  assumed  at  the  hands  of  F.  J. 
Stahl.^  Among  the  students  of  the  subject  this  has  found  com- 
paratively few  followers. 

Here  the  idea  of  retributive  divine  justice  as  a  basis  for  the 
criminal  law  of  the  State  is  again  entertained.  The  latter  is 
nothing  other  than  a  limited  divine  justice,  or  (as  Stahl  also  por- 
trays it),  a  moral  punishment,  with  the  peculiar  characteristic  of 
being  applied  only  to  external  manifestations  and  therefore  eft'ec- 
tive  only  upon  external  manifestations.  Thus,  from  that  dialectical 
or  logical  effect  which,  according  to  Hegel,  the  law,  through  the 
punishment,  should  have  upon  the  wrong,  there  arises  an  act  of 
authority  emanating  from  divine  omnipotence.  But  at  the  same 
time  Stahl  keeps  one  foot  upon  the  relative  theory.  Perhaps,  on 
one  hand,  this  is  indicative  of  the  feeling  that  it  is  little  in  har- 
mony with  enlightened  opinion,  and  particularly  Christian  opin- 
ion, to  attribute  to  the  Deity  an  unlimited  desire  for  vengeance 
and  retribution ;  while,  on  the  other  hand,  it  shows  that  this  able 
and  experienced  statesman  and  jurist  has  been  unable  to  deny 

«  §  282. 

1  "Die  Philosopliie  des  Rechts"  (3d  ed.  1856),  Vol.  II,  pt.  1,  pp.  160 
el  seq.;  pt.  2,  pp.  681  et  seq.  The  fundamental  outlines  of  this  theon*  are 
also  to  be  found  in  Jarcke,  "Handbuch  des  gem.  deutsehen  Strafreehts", 
I  (1827),  pp.  240  et  seq.,  and  in  the  otherwise  unimportant  work  of  Linck's, 
"Ueber  das  Naturrecht  unserer  Zeit  als  Grundlage  der  Strafreehtstheo- 
rien"  (1829).  It  should  be  noted  that  Jarcke  (pp.  244,  245)  perceives  the 
advantage  of  a  philosophy  of  criminal  law  only  in  the  fact  that  "thereby 
the  course  of  practice  is  closed  to  false  and  one-sided  theories,  and  to 
that  laxness  which  at  times  even  intentionally  allows  guilty  offenders  to 
escape."  Philosophy  should  have  no  influence  upon  the  detail  of  criminal 
law,  which  is  purely  a  matter  of  historical  development,  nor  should  it 
ever  be  allowed  to  specify  punishments  as  irrational.  The  purely  retro- 
grade tendency  of  the  absolute  theory,  in  so  far  as  it  regarded  punishment 
as  a  harm  or  suffering  of  the  offender,  is  here  very  well  illustrated. 

464 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§  98 

that  punishment  is  also  obliged  to  adjust  itself  to  purposes  other 
than  that  of  retribution. 

It  is  not  the  legislative  statute  (Stahl  says)  which  should  be 
maintained  by  the  punishment,  but  rather  its  majesty  (or  suprem- 
acy). "  Every  (criminal)  act  involves  an  assertion  of  authority; 
there  is  contained  in  it  a  permanent  actual  power,  an  absolute 
effect."  This  authority  (rebellion)  of  the  individual  will  should 
be  suppressed  by  the  punishment,  should  be  eliminated.-  In 
other  words  :  "  By  means  of  the  punishment .  .  .  the  State  is  pre- 
served and  secured  against  the  danger  to  it  which  is  contained  in 
the  crime ;  and  if  the  State  does  not  perform  its  moral  duties  of 
administering  justice  and  of  punishing,  it  must  externally  and 
automatically  fall  to  pieces  (self-preservation).  The  punishment 
does  not  merely  render  permanently  or  temporarily  incapable  of 
doing  harm  that  worst  portion  of  the  people  who  through  actual 
crime  make  a  test  of  the  punishment  (prevention).  But,  what  is 
far  more  important,  it  also  restrains  the  entire  people  from  crime 
(deterrence)  by  fear  of  punishment.  With  the  predominance  of 
evil  in  our  present  earthly  condition,  nothing  but  fear  is  able  to 
preserve  order  and  security  for  the  individual  and  for  all.  —  In  the 
same  way,  morality  is  aided  by  punishment  and  the  dealing  out 
of  justice.  First,  the  morality  of  the  criminal  (reformation) ; 
since  the  external  suffering  which  deservedly  falls  upon  him  must 
bring  him  to  his  senses  and  to  reform,  unless  he  resists  through 
stubbornness.  Secondly,  the  morality  of  the  people ;  since  the 
punishment  not  only  psychologically  deters  from  crime  through 
fear  of  the  contemplated  evils  of  the  punishment,  but  also  morally 
supplements  both  the  consciousness  of  the  utter  perdition  of 
crime  and  the  abhorrence  of  baser  motives  which  lead  to  crime."  ^ 
This  attribution  of  the  origin  of  the  State  and  of  punishment  to  a 
divine  will  may  indeed  be  accepted.  Every  one,  who  will  at  all 
recognize  a  higher  relation  of  things,  is  also  obliged  to  recognize 
it  in  respect  to  the  State  and  to  punishment ;  and  through  the 
reference  of  punishment  to  a  law  higher  than  that  of  human  despot- 
ism or  of  calculated  utility,  there  may  perhaps  be  secured  for 
criminal  justice  a  certain  wise  moderation. 

Stahl's  criticism  of  Hegel's  purely  dialectical  derivation  of  pun- 
ishment is  also  appropriate.     "  The  question,  how  the  injury  of 
the  criminal  in  person  may  constitute  an  elimination  or  even  a 
logical  negation  of  his  preexisting  criminal  influence  and  deed  is 
*  II.  1,  p.  166.  3  II.  2,  p.  684. 

465 


§98]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW       [Pakt    II 

not  answcretl,  nor  is  it  at  all  explained  how  a  repentant  criminal 
in  whom  the  crime  no  longer  has  existence  must  or  merely  may 
be  punished."  ^  But  Stahl,  according  as  it  suits  him  and  his 
tendencies,  picks  out  certain  maxims  of  the  Bible  as  legal  maxims ; 
and,  in  spite  of  his  protest,'^  he  succumbs  to  the  danger  of  confusing 
the  divine  sanction  of  the  institution  in  general  with  the  di\üne 
sanction  of  a  certain  development  of  the  institution,  and  relatively, 
of  the  institution  in  certain  of  its  operations.^  Furthermore,  the 
derivation  of  punishment  directly  from  divine  justice  (although 
from  modified  divine  justice  exercised  by  a  representative)  is  not  to 
be  reconciled  with  the  founding  of  punishment  upon  the  necessity 
of  maintaining  the  law  and  the  State.  As  an  illustration,  from 
the  latter  there  can  be  deduced  the  necessity  of  some  punishment 
which  the  former  does  not  require.  Such  a  punishment  is  not, 
as  Stahl  ^  believes,  excused  as  a  law  of  necessity.  It  is  simply 
without  any  justification;  since  divine  justice  admits  no  more  of 
being  supplemented  than  of  being  curtailed.  Also,  the  concep- 
tion of  punishment  as  a  manifestation  of  divine  justice,  and  of  the 
State  as  an  external  representation  of  the  Kingdom  of  God,  must 
ultimately  lead  to  the  tendency  to  make  the  punishments  of  the 
State  coincide  as  nearly  as  possible  with  divine  punishments, 
and  also  as  far  as  possible  to  identify  sins  (immorality)  and  crimes. 
The  suggestion,  often  made  by  Stahl,  that  the  State  is  only  an 
external  kingdom  places  but  a  feeble  restriction  upon  this  tendency. 
For,  according  to  such  a  conception,^  the  very  fact  of  "  external- 
ity "  must  appear  merely  as  an  imperfection  ^  to  be  overcome  as 
completely  as  possible.^'' 

MI.  1,  p.  174.  6  II.  2,  p.  683. 

^  Cf.  especially  II,  2,  pp.  701,  702,  the  discussion  of  the  death  penalty. 
"Authority  does  not  carry  the  sword  in  vain." 

'  II,  2,  p.  702. 

^  Cf.  II,  p.  691.  According  to  this,  sin  and  lack  of  piety  should  also 
be  punished,  although  only  by  the  police  jurisdiction,  for  the  promotion 
of  morality  and  reprobation  of  offensiveness.  The  qualification  of  the 
punishment  as  being  one  proper  for  police  regulation,  could  not  actually 
be  changed.  That  no  one  may  be  beheaded  or  imprisoned  for  life  for 
lack  of  piety  or  for  sin  is  obvious. 

5  This  tendency  is  manifest  especially  in  E.  J.  Bekker,  "Theorie  des 
heutigen  deutschen  Strafrechts",  I  (1857),  pp.  28  et  seq.,  who  for  this 
reason  designated  as  the  ideal  standpoint  the  abolition  of  all  tLxed  rules 
of  law  so  that  the  judge  could  punish  all  deserving  punishment.  Bekker 
regarded  crime  as  rebellion  against  the  (Christian)  will  of  State.  Walter, 
"Natturrecht  und  Politik  im  Lichte  der  Gegenwart"  (1863),  §409 
simply  adopts  Stahl's  theory. 

"  At  the  beginning  of  the  1800  s  the  principle  of  retribution  was  ad- 
vanced in  a  peculiarly  mj'stical  way  by  that  representative  of  the  Legiti- 
mists and  the  Papacy,  Count  Joseph  de  Maistre.     This  theory,  however, 

466 


Chapter  VI]  CRIMINAL   THEORIES   IX   GERMANY  [§  98 

Schleiermacher.  —  As  a  matter  of  fact,  the  alliance  between 
Christian  theology  and  the  criminal  law  of  the  State,  with  its 
indispensable  attribute,  the  headsman's  axe,  is  neither  original 
in  Stahl  nor  is  it  given  a  new  foundation.  It  is  simply  a  repetition 
of  the  viewpoint  of  the  leaders  of  the  Reformation.  ]\Iore  pro- 
found and  interesting  is  that  adjustment  of  the  differences  between 
Christianity  and  the  punishment  of  the  State  which  was  attempted 
by  the  famous  theologian  Schleiermacher.^^  The  passages  of  the 
Bible  which  make  it  a  Christian  duty  not  to  appeal  to  the  civil 
authorities  are  quite  correctly  explained  by  Schleiermacher  as 
being  a  result  of  the  conditions  existing  at  a  time  in  which  there 
were  no  Christian  authorities.  Consequently,  since  without 
the  function  exercised  by  the  criminal  courts  the  power  of  evil 
would  be  invincible,  he  finds  no  obstacle  to  assuming  that  the 
Christian  can  support  the  authorities  in  the  exercise  of  criminal 
jurisdiction,  and  can  himself  even  occupy  a  post  of  authority.^- 
The  death  penalty,  however,  appears  to  him  as  being  absolutely 
contrary  to  the  spirit  of  Christianity,  and  he  assails  it  in  vigorous 
terms  as  a  relic  of  ancient  barbarity.  Xor  will  he  countenance 
the  idea  of  retribution ;  he  feels  that  the  suffering  entailed  by  pun- 
ishment, where  it  does  not  prompt  the  criminal  to  repentance, 
is  at  variance  with  the  highest  Christian  sentiment.  Conse- 
quently, he  would  acquiesce  in  a  threat  of  punishment,  preferably 
where  the  threat  without  the  fulfilment  would  not  be  ineffective ; 

while  not  dealt  with  in  detail,  will  serve  as  an  illustration  of  the  results 
that  may  ultimately  be  obtained  from  the  theory  of  divine  retribution, 
or  e\'en  from  retribution  generally  —  sinee  the  idea  of  retribution  always 
leads  ultimately  to  a  deification  of  existing  institutions.  According  to 
de  jNIaistre,  human  victims  are  required  because  of  universal  sin.  They 
fall  in  numbers  in  war  and  singlj'  under  the  axe  of  the  executioner,  and 
there  is  no  reason  for  concern  in  their  increased  or  diminished  number. 
The  executioner  is  the  mysterious  correlate  of  earthly  authority,  without 
which  earthly  majesty,  the  representative  of  God,  cannot  exist.  The 
executioner  inspires  horror  and  aversion,  and  one  cannot  perceive  how 
any  one  can  be  found  for  this  fearful  ofiice.  But  because  of  a  mysterious 
dispensation  of  Providence  there  is  no  lack  of  executioners,  and  as  a  matter 
of  fact  the  executioner  does  nothing  different  from  the  soldier  (I)  who  is 
seized  by  rage  and  the  enthusiasm  of  the  battle  and  desire  for  victims. 
There  is  no  need  to  be  disturbed  if  perhaps  some  innocent  party  is  exe- 
cuted. There  are  far  more  gi'ievous  evils,  and  every  one  merits  it  because 
of  liis  sins.  —  And  yet  all  this  exposition  is  not  as  absurd  as  it  seems.  In 
reality,  the  idea  of  retribution  in  criminal  law  is  always  a  confusion  of 
the  human  and  practical  standpoint  with  the  divine  but  (for  us)  un- 
attainable and  impractical  standpoint.  ("Soirees  de  St.  Petersbourg", 
I,  pp.  14  el  seq.,  pp.  34  et  seq.;  II,  p.  4,  p.  23  ;  I,  pp.  182  et  seq.,  pp.  214 
et  seq.). 

1'  Cf.  Schleiermacher,  "Die  christliche  Sitte,  herausgegeben  von  Jonas", 
pp.  241  et  seq. 

12  Pp.  247  et  seq. 

467 


§  98]  HISTORY    OF   THE   THEORIES   OF    CRIMINAL   LAW       [Paut    1 1 

indeefl,  it  almost  seems  to  be  his  idea  tliat  no  punishment  should 
be  inflicted  upon  the  sinner  who  is  really  repentant;  although, 
if  punishment  is  inflicted  upon  the  repentant  Christian,  he  should 
submit  to  it  with  obedience.'^ 

Thus  Schleiermacher,  while  correctly  expressing  the  thought 
that  if  all  —  or,  as  we  would  state  more  exactly,  if  the  vast  ma- 
jority —  were  true  Christians,  punishment  would  have  to  be 
discarded,^^  is  forced  into  Feuerbach's  theory  of  psychological 
coercion.^''  He  even  lays  down  the  principle  that,  where  the  threat 
is  preexisting  and  known  to  the  criminal,  it  is  not  essentially  the 
authority  who  inflicts  the  evil,  but  rather  it  is  the  criminal  who 
brings  the  evil  upon  himself.^®  He  avails  himself  of  this  prin- 
ciple to  exonerate  completely  those  Christians  who  take  part  in 
the  complaint,  the  prosecution,  and  the  punishment ;  herein 
failing  to  realize  that  responsibility  for  the  necessity  of  the  pun- 
ishment must  be  attributed  not  only  to  the  criminal  but  also  to  a 
certain  extent  to  every  one  else,  even  to  those  imperfect  Chris- 
tians of  whom  he  is  speaking. 

But,  in  all  this,  Schleiermacher  does  not  appear  to  have  at- 
tained complete  satisfaction  of  mind.  He  even  resuscitates  the 
ancient  principle  that  the  punishment  is  also  something  of  a 
benefit,^'^  and  in  connection  with  this  idea  he  repudiates  those 
punishments  bearing  the  characteristic  of  pure  vindictiveness. 
Consequently  he  wavers  between  the  conception  of  punishment 
as  a  "  poena  vindicativa  "  and  as  a  "  poena  medicinalis  ",  —  just 
as  had  previously  been  done  by  the  Church,  before  the  time  when 
orthodoxy  had  completely  established  the  direct  justification  of 
the  punishments  of  the  State  upon  divine  precepts.  Schleier- 
macher reveals  his  status  as  a  theologian  in  regarding  the  crime 
not  (with  Feuerbach)  as  a  violation  of  a  right,  but  as  disobedience 

"  This,  however,  is  not  perfectly  clear,  since  the  passages  in  question 
speak  only  of  self-accusation  and  of  the  right  or  duty  to  call  in  the  authori- 
ties. C/.  pp.  2.54,  2.57  note.  In  the  first  passage  it  says:  "The  moral 
law  does  not  require  that  one  give  himself  up  as  a  transgressor  of  the 
law.  ...  If  any  one  .  .  .  has  actually  come  to  recognize  his  sin,  then 
he  is  even  upon  the  path  that  should  lead  to  a  revocation  of  the  punish- 
ment." 

»  P.  260. 

'5  He  is  not  certain  however  as  to  its  results. 

'6  P.  248. 

*'  P.  251  note.  In  connection  with  this  idea  there  is  found  also  that 
false  principle,  reminding  one  of  the  contract  theory  of  the  law  of  nature, 
that  the  death  penalty  is  allowable,  since  the  Christian  can  be  satisfied  in 
that  it  inflicts  no  greater  e\il  upon  the  offender  than  each  may  bring  upon 
himself. 

468 


Chapter  VI]  CRIMINAL    THEORIES    IN    GERMANY  [§  98 

of  the  orders  of  the  State,^^  and  also  in  not  being  able  to  conceive 
that  vengeance  is  not  always  positively  immoral.  Thus,  the 
State  again  appears,  after  all,  not  as  the  work  and  creation  of  man, 
but  rather  as  "  Deus  ex  machina  ",  which  confers  upon  man  the 
favor  of  inflicting  evil  (punishment)  upon  the  wicked,  so  that  the 
Christian  in  his  innocence  may  wash  clean  his  hands.'^ 

Daub.  —  The  Protestant  theologian  Daub  -°  allies  the  Platonic 
conception  of  punishment  with  Hegel's  conception  of  punishment 
as  a  negation  of  wrong.  He  portrays  the  blotting  out  of  the  wrong 
in  the  will  of  the  criminal  by  means  of  the  punishment  as  some- 
thing necessary,  but  at  the  same  time  he  denies  that  punishment 
bears  the  character  of  evil.  Since  the  source  of  law  is  "  love  ", 
punishment  is  a  kindness,  a  benefit.  ]Mere  sins  which  concern 
only  the  individual  and  his  God  may  be  blotted  out  by  remorse 
and  penitence,  but  crimes  which  also  affect  others  can  be  done 
away  with  only  by  the  punishment  of  the  offender.  Thus,  even 
the  death  penalty  appears  as  a  benefit.  The  blood-guilt  of  the 
murderer  can  be  removed  from  him  only  with  his  own  blood. 
However,  if  one  consider  it  closely,  this  is  so  only  if  the  criminal 
can  be  brought  to  pronounce  his  own  sentence,  so  that  he  be  con- 
vinced that  justice  is  being  done  him.  If  this  be  not  the  case,  the 
criminal  merely  succumbs  to  the  unavoidable  and  the  execution 
assumes  somewhat  the  character  of  murder.-^ 

A  special  criticism  of  this  view  is  not  necessary.  The  criticism 
of  Plato's  views  and  those  of  Hegel  also  contain  a  criticism  of  this 
combination  of  both.  It  is,  however,  interesting  to  observe  that 
Daub  vigorously  assails  the  idea  of  retribution,  which  is  at  vari- 
ance with  Christianity  (retribution,  not  through  God,  but  through 
men  !) ,  and  protests  against  the  misuse  of  the  offender  for  arbi- 
trary purposes  of  deterrence  or  of  reformation  according  to  the 
dictates  --  of  a  class  privileged  to  impose  reform.^ 

18  P.  258. 

1'  Occasionally,  however,  this  clear  thinker  has  not  failed  to  recognize 
that  a  different  condition  exists.  Thus  on  p.  251,  lie  says  :  "The  criminal 
law  can  be  nothing  other  than  an  expression  of  the  general  will  inspired 
by  the  Christian  spirit",  and  on  p.  252  (note)  :  "The  Christian  authorities 
cannot  justify  themselves  by  saying  that  they  found  the  law  (i.e.  of  capital 
punishment)  already  in  existence,  because  every  law  can  be  changed." 

-"  "Svstem  der  theologischen  Moral",  II.  1,  especiallv  pp.  347  ct  seq. 

"  P.  285.  22  I.  pp_  342  ct  seq.,  note. 

'^  The  statements  concerning  pimishment  and  criminal  jurisdiction  of 
Rothe,  "Theologische  Ethik",  III,  pp.  874  et  seq.  (1st  ed.),  have  no 
original  significance.  They  amount  sulistantially  to  an  uncertain  repeti- 
tion of  Hegel  and  Stahl,  except  that  the  negation  of  wTong  is  taken  rather 
in  the  sense  of  Kant's  retribution.     {Cf.  e.g.  pp.  877,  886:    "The  justi- 

469 


§  99]  HISTORY   OF   THE   THEORIES   OF   CRIMINAL   LAW      [Part   II 

§  99.  Later  Developments  of  Hegel's  Theory.  Trendelenburg. 
—  The  purest  conception  of  Hegel's  tlieory  was  held  by  Trendelen- 
burg/ who  at  the  same  time  rewrote  it  in  very  plastic  style.  A 
crime  is  to  him  essentially  a  wrong  done  intentionally,  and  right 
is  restored  by  the  punishment  —  in  an  ideal  way  at  least  (since 
a  wrong  that  is  done  can  not  be  undone).  "  In  its  innermost  pur- 
pose, punishment  is  the  force  of  law  over  the  criminal,  —  the  force 
of  law  for  the  party  who  has  been  injured,  and  the  force  of  law  in 
the  community."  ^  While  attention  is  called  to  the  fact  that 
historical  development  and  higher  conceptions  have  caused  the 
satisfaction  ^  of  the  injured  party  to  be  merged  in  the  idea  of  gen- 
eral restoration  ;  punishment,  as  the  force  of  law  over  the  criminal 
and  as  force  in  the  society  of  men,  is  the  subject  of  special  ampli- 
fication. Punishment,  the  reaction  against  wrong,  is  aimed  to 
enable  the  ofTender  who  has  maliciously  violated  the  law  to  per- 
ceive that  the  punishment  is  a  necessary  consequence  of  his  guilt 
and  that  it  is  deserved,  and  to  enable  him,  in  so  far  as  his  rebellion 
against  the  law  is  broken  by  the  power  of  the  law,  to  feel  that  the 
punishment  is  atonement  for  his  wrong,  and,  as  regards  the  divine 
government  of  aflfairs,  expiation.  In  this  relation,  punishment 
is  the  right  of  the  offender.  It  is  a  recognition  rather  than  a 
violation  of  his  individuality. 

To  be  sure,  this  aspect  of  punishment  depends  upon  the  con- 
ception of  the  criminal  as  something  that  is  free  and  can  not  be 

fication  of  punishment  consists  in  its  actually  being  retribution.")  They 
also  contain  other  manifestly  retrograde  ideas.  Differing  from  Hegel, 
Rothe  believes  it  is  possible  upon  the  whole  to  fix  gradations  in  punish- 
ment by  retribution  and  that  the  death  penalty  is  justified  by  the  usual 
references  to  certain  passages  of  the  Bible  (which  passages  historically 
considered  have  another  meaning),  p.  887.  On  pages  876  and  877,  re- 
ferring to  Xitzsch,  he  saj's :  "And  indeed  as  a  Christian  State,  the  State 
must  punish ;  for  even  upon  a  basis  of  a  complete  conciliation  of  'the 
conflict  between  the  interests  of  hoUness  and  those  of  grace  arising  from 
the  redemption  (Would  that  this  conciliation  were  already  accomplished  I), 
Christian  love  can  not  stay  the  arm  of  criminal  justice,  but  rather  it 
must  in  its  own  interests  expressly  lu-ge  it  to  activity' "( !).  For  the 
judge  indeed,  the  two-soul  theory*  which  he  advances  is  correct ;  —  but 
how  the  state  may  be  Christian  love  and  yet  —  not  from  love  for  or 
interest  in  its  innocent  subjects  —  because  of  blind  retribution  assign 
the  criminal  to  the  executioner,  is  not  readily  comprehensible.  The 
criminal  law  of  the  1500  s  and  1600  s  which  arose  from  these  opinions 
furnishes  a  criticism  of  such  theories.  It  is  natural  that  the  fact  is  over- 
looked that  criminal  law  histoi'ically  had  its  origin  in  vengeance,  which 
is  everywhere  condemned  (c/.  p.  877,  tiote).  In  all  these  matters  Sehleier- 
macher  has  shown  greater  depth  of  thought. 

1  "Xaturrecht  auf  dem  Grunde  der  Ethik"  (2d  ed.,  1868),  §§  50,  56-62. 

-  "Xatturrecht,  etc.",  §  58. 

^  Apart  from  external  indemnification. 

470 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§  99 

moulded  at  will ;  but  if  punishment  were  the  abolition  of  one 
wrong  by  the  infliction  of  another,  this  punishment  would  be 
impossible.  Only  that  punishment  will  appear  just  to  the  criminal 
which,  on  one  hand,  necessarily  springs  from  the  nature  of  his 
own  act,  and  on  the  other,  from  the  provisions  of  the  law  he  has 
violated.  First,  the  wrong  is  plucked  at  its  root  in  the  mind  of 
the  criminal.  His  reformation  is  the  victory  of  the  law  over  tlie 
hostile  will ;  hence,  that  it  may  the  more  readily  be  perceived  by 
the  criminal,  the  purpose  of  reformation  is  included  in  the  punish- 
ment. Furthermore  :  ■*  "  Successful  crime  incites  greed  and  the 
evil  will  of  others  for  secret  enjoyment.  The  evil  example  loses 
its  power  of  incitement  only  when,  destroyed  by  the  punishment, 
it  leads  to  the  opposite  of  incitement,  or  when,  in  the  psychological 
process  of  the  usual  association  of  ideas,  the  illusion  of  pleasure 
associated  with  the  example  is  counterbalanced  bj^  the  influence 
of  fear  and  unhappiness.  Intentional  wrong  seldom  arises  of  its 
own  accord  and  without  association  with  something  else.  Rather 
it  has  its  conditions  in  the  various  social  notions  favorable  to  its 
production ;  there  is  in  every  man  a  germ  of  malicious  wrong  in 
all  its  forms."  Upon  this  necessary  effect  of  civil  punishment 
upon  the  community,  there  also  rests,  as  Trendelenburg  further 
remarks,  its  distinction  from  pedagogical  punishment. 

Trendelenburg's  conception  has  but  slight  resemblance  to  the 
old  view  which  regards  punishment  specifically  as  suflfering,  as 
evil  for  the  criminal.  The  idea  is  not  quite  so  clearly  present  as 
in  Hegel  that  crime  and  punishment  are  not  commensurable,  and 
that  it  can  only  be  established  historically  and  not  in  principle 
that  a  definite  punishment  is  merited. 

Abegg.  — ■  Hegel's  dialectic  reaction  against  wrong  assumes, 
ori  the  other  hand,  more  and  more  of  the  character  of  retribution  in 
certain  jurists  who  in  principle  stand  or  seem  to  stand  on  the 
same  ground  as  Hegel.  If,  on  one  hand,  one  can  not  free  himself 
from  the  old  remnant  of  the  maxim  :  "  ^Nlalum  passionis  ob  malum 
actionis  ",  anfl,  hence,  is  involved  in  new  difficulties,  so,  on  the 
other  hand,  a  proper  eft'ort  is  made  to  show  that  the  purposes  of  the 
punishment  recognizable  as  meeting  temporary  requirements 
are  directly  the  reverse  of  the  absolute  principle,  and  to  portray 
punishment  as  having  a  Janus  head,  —  one  face,  turned  towards 
the  past,  permits  the  absolute  principle  of  punishment  to  be  recog- 
nized, and  another  face,  turned  towards  the  future,  reveals  the 

'  §61. 
471 


§  99]  HISTORY    OF   THE    THEORIES   OF   CRIMINAL   LAW       [Paut   II 

relative  purposes  of  punishment.  And  at  the  same  time,  an  at- 
tempt is  made,  as  must  be  the  case  in  a  correct  theory,  to  adjust 
the  theory  to  historical  development. 

This  last-mentioned  attempt  is  made  by  Abegg.^  He  portrays 
how  the  elimination  of  wrong  passed  from  the  form  of  vengeance 
to  that  of  composition,  and  from  this  changed  to  punishment 
inflicted  by  the  State  with  relative  purposes  (deterrence  of  others, 
safety  from  the  criminal,  reformation),  and  ultimately  finds  its 
completion  in  the  principle  of  justice,  which,  however,  adopts 
these  relative  purposes  but  in  proper  measure  and  relation.  He- 
gel's method  of  dialectical  contrast  —  the  direct  expression  of 
feeling  in  vengeance,  accepted  purposes  of  punishment,  and  the 
treatment  of  the  criminal  in  accordance  therewith,  and  ultimately 
remission  and  expiation  in  the  higher  sense  —  is  here  followed, 
but  quite  foreign  elements  are  injected  into  his  opinions.  Hegel's 
reaction  against  wrong  ®  is,  as  it  were,  meaningless  in  itself ;  it  is 
only  in  the  sphere  of  finiteness  {i.e.  in  history)  that  it  assumes  the 
coloring  of  a  definite  evil  inflicted  upon  the  criminal,  in  accordance, 
also,  with  the  prevailing  tendencies  of  thought.  In  Abegg  there 
again  prevails  the  illusion  that,  in  accordance  with  an  eternal 
and  immutable  rule  of  justice,  the  kind  and  degree  of  the  punish- 
ment (or  more  correctly  and  in  Abegg's  sense,  the  evil  contained 
in  the  punishment)  can  be  definitely  fixed. ^  Under  this  concep- 
tion, the  alliance  of  the  purposes  of  deterrence,  security  from  the 
offender,  and  reformation,  with  the  absolute  principle,  is  only 
an  appearance.  Such  an  alliance  is  impossible,  —  for  those  very 
reasons  which  of  necessity  prevail  against  Rossi's  theorj'.  If 
absolute  justice  and  a  relative  purpose  of  punishment  are  two 

6  "Die  verschiedenen  Straf rechtstheorien  in  ihrem  Verhältniss  zu 
einander"  (1835),  pp.  8  et  seq. 

6  In  Abegg's  "Lehrbuch  der  Straf  Wissenschaft",  §  48,  punishment  is 
conceived  as  the  bowing  of  the  criminal  to  the  will  of  the  law. 

^  Cf.  especially  page  28:  "Punishment  is  allowed  only  to  serve  the 
ends  of  justice,  and  this  furnishes  the  rule  for  its  application,  and  its 
conditions,  its  kind  and  amount."  However,  in  §  49  of  his  "Lehrbuch", 
mention  is  again  made  of  a  relation  between  guilt  and  punishment  de- 
termined by  considerations  of  the  nation  and  morality,  and  the  resulting 
retribution.  But  in  the  "Archiv  des  Criminalrechts "  (1845),  p.  262, 
Abegg  formally  defends  himself  against  Hepp's  criticism  that  he,  Abegg, 
had  said  in  the  sense  of  Hegel  that  punishment  is  not  an  e\il.  Abegg 
would  merely  say  that  punishment  which  is  primarily  and  directly  an 
evil  for  the  criminal,  could  and  should  (?)  be  also  a  benefit  for  him.  Here 
may  be  observed  that  "could  and  should"  which  are  so  easily  said  in  the 
same  breath.  But  what  if  these  premises  do  not  apply?  There  is  no 
doubt  about  the  "could",  but  the  "should"  gives  punishment  an  entirely 
different  meaning,  and,  when  logically  thought  out,  under  some  circum- 
stances a  quite  different  form. 

472 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§  99 

different  aspects  of  the  same  thing,  then  both  are  consistent.  The 
acceptance  of  them  as  consistent  is  Rossi's  theory.  But  in  Abegg's 
theory,  also,  there  is  no  possibihty  of  these  two  conceptions  being 
reconciled,  as  is  revealed  by  a  contemplation  of  the  results.  He 
who  takes  the  trouble  to  follow  up  closely  the  results  of  the  various 
theories  (as  was  done  by  Feuerbach)  thus  pragmatically  united, 
will  necessarily  agree  with  Feuerbach's  criticism,  that  the  two 
garments  are  so  badly  torn  that  it  is  impossible  to  patch  up  a  decent 
covering  for  the  State. 

Heffter.  —  The  defect  of  such  a  combination  of  theories  ^  is  es- 
pecially manifest  in  the  clear  and  concise  expression  given  it  by 
Heffter,  one  of  its  supporters,  in  §  109  of  his  valuable  treatise. 
"  Punishment,"  says  Heffter,  "  in  its  absolute  character,  as  an 
elimination  of  the  guilt  in  the  offender,  is  in  and  of  itself  not  de- 
pendent upon  the  attainment  of  any  specific  purposes.  It  is 
rather  a  purpose  in  itself,  and  in  accordance  with  its  nature  has 
the  effect  of  curing.  In  the  sphere  of  the  State  and  its  rights,  as 
in  finite  affairs  generally,  punishment  assumes  certain  peculiar 
relations.  While  here  it  may  be  inflicted  solely  in  the  general 
legal  interest  ('  for  the  general  utility  '),  it  becomes  a  satisfaction 
which  the  State  requires  and  takes  from  those  guilty  of  a  viola- 
tion of  the  general  legal  system,  for  the  purpose  of  the  restoration 
and  maintenance  of  the  same."  It  is,  indeed,  not  apparent  how 
in  the  sphere  of  finite  affairs  the  absolute  purpose  of  eliminating 
guilt  can  change  itself  into  the  purposes  of  deterrence,  reformation, 
etc.,  and  at  the  same  time  remain  true  to  itself.  Nor  is  it  apparent 
how  it  is  just  that  the  criminal  must  submit  to  these  purposes. 
The  solution  of  the  problem  is  presumed,  but  it  is  not  given.  The 
contradiction  is  merely  concealed  by  distinguishing  between  the 
sphere  of  principle  (idea)  and  the  sphere  of  finite  affairs. 

Köstlin,  Merkel.  —  Köstlin  ^  and  Merkel,  in  spite  of  the  many 
excellent  statements  concerning  individual  points  of  criminal  phi- 

*  Freylag' s  attempt  ("Die  Coneessionalgerechtigkeitstheorie",  c/.  es- 
pecially p.  46)  is  particularly  an  alliance  of  the  absolute  theory  (funda- 
mentally the  theory  of  Hegel)  with  the  contract  theory,  the  theory  of 
voluntary  submission.  He  regards  the  principle  of  criminal  law  as  a 
right  acquired  by  agreement  or  concession  to  realize  the  idea  of  law  in 
all  those  cases  in  which  an  act  is  done  contrary  to  the  laws  representing 
it.  This  realization  is  attained  b.y  means  of  an  evil  inflicted  as  a  punish- 
ment upon  the  doer  of  the  act.  According  to  Freytag,  every  one  respon- 
sible for  his  acts,  by  living  in  the  State  proclaims  his  submission  to  its 
criminal  law.     A  criticism  of  this  view  is  not  necessary. 

9  "Neue  Revision  der  Grundbegriffe  des  Criminalrechts"  (1845),  pp. 
1-53,  pp.  764-850;  "System  des  deutschen  Strafrechts"  (1855),  §§  1-8, 
114-124. 

473 


§  !»'.)]  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Part  II 

lüS()i)liy  Tor  which  \vc  iirc  iiidehtcd  to  tliem,  do  not  carry  their  ideas 
substantially  farther  than  the  foregoing.  KöstHn,  in  part  adhering 
more  closely  than  Hefl'ter  to  Hegel,  merely  adds  an  examination 
into  the  j^ssible  kinds  of  wrong.  He  classifies  unconscious  wrong 
as  the  object  of  civil  justice,  possil)le  wrong  as  the  object  of  the 
police  system,  and  known  antagonism  of  the  will  of  the  individual 
towards  the  general  law  as  crime.  He  designates  punishment  as 
coercion  brought  to  bear  on  the  will  of  the  criminal.  According 
to  Köstlin,  punishment  may  not  consist  of  a  general  reaction 
against  the  personality  of  the  criminal,  but  it  may  be  such  only  to 
that  degree  to  which  the  criminal  himself  has  thwarted  the  general 
will.  Consequently,  as  Köstlin  himself  says,  he  regards  punish- 
ment externally  as  retribution  and  as  an  evil. 

The  theory  of  retribution  here  again  becomes  very  prominent ; 
and  the  statement  that  this  is  the  case  only  "  externally  "  does 
not  suppress  the  truth.  It  merely  conceals  the  difficulty  of  prov- 
ing that  the  punishment  should  also  inwardly  be  a  benefit  to  the 
criminal,  —  a  thing  which  in  empirical  conditions  is  by  no  means 
uniformly  the  case.  If,  without  gi\'ing  that  necessary  attention 
to  an  injury  to  the  public,  one  could,  in  the  case  of  many  a  repent- 
ant criminal,  forego  the  punishment,  he  would  certainly  thereupon 
reform.  And  if  we  consider  how  defective  the  means  of  punisli- 
ment  have  been  and  still  remain  (how^  difficult,  for  example,  is  the 
erection  of  a  penal  institution  corresponding  to  all  requirements), 
we  shall,  as  it  appears,  perceive  that  here  a  single  phrase  has  bridged 
over  the  chasm  between  good  and  evil.  IMoreover,  Köstlin's 
classification  of  the  three  kinds  of  Avrong  is  not  satisfactory,  — 
the  distinction  between  civil  wrong  and  criminal  wrong  for  the 
reasons  previously  dealt  with.  As  to  the  intermediate  classifica- 
tion favored  by  the  dialectical  method  of  Hegel,  the  penalties 
inflicted  by  the  police  power  are,  as  a  rule,  not  juristically  preven- 
tive, but  rather,  as  it  were,  remedial ;  the  action  contravening  a 
police  regulation  is  not  merely  a  possible  wrong  but  an  actual 
wrong,  although  it  is  not  necessary  that  it  directly  violate  a  sub- 
jective right  or  work  a  real  external  injury.  This  is  exactly  the 
case  with  quite  a  number  of  criminal  offenses;  and  the  fact  is 
merely  that  police  regulations  concern  themselves  chiefly  with 
acts  Avhich  are  not  aimed  at  a  violation  of  a  right  but  which 
nevertheless  place  a  right  in  jeopardy.  —  The  justification  of 
punishment  as  a  right  of  the  criminal  is  only  incidentally 
treated   by  Köstlin.     He  believes  that  punishment  reaches  the 

474 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§  99 

criminal   only  in  accordance  with  laws  which  the  latter  himself 
has  established. 

Merkel  involves  himself  in  a  peculiar  difficulty.^''  He  capably 
demonstrated  that  the  distinction  favored  by  Hegel  between  the 
circumstances  of  punishable  and  non-punishable  wrong  acts  is 
not  tenable.  But  this  demonstration  carried  with  it  the  assump- 
tion that  no  distinction  exists  at  all  between  criminal  wrongs  and 
civil  wrongs,  and  that  civil  and  criminal  sanction  are  identical  in 
nature.  Both  do  away  with  wrong,  —  criminal  sanction  in  the 
ideal  inner  sphere  and  civil  sanction  in  the  external  sphere.  This 
is  fundamentally  connected  with  ^Merkel's  assumption  that  wrong 
is  conceivable  only  as  blameworthy,  and  that  law  consists  merely 
of  commands  (rules)  and  prohibitions  addressed  to  persons  who 
are  responsible  for  their  acts.  Howe\'er  plausible  ^^  this  assump- 
tion may  be  made  through  the  observation  that  the  contrary  view 
would  logically  compel  us  to  regard  an  unreasoning  character  as  a 
possible  author  of  a  legal  injury,  yet  fundamentally  it  rests  upon 
the  long-since  repudiated  foundation  of  law  by  contract.  I  have 
a  right  only  because  a  rule  of  law  forbids  other  responsible  beings 
to  take  the  object  from  me.  That  is,  I  have  a  right  merely  by 
virtue  of  a  forbearance  on  the  part  of  others  which  is  either  volun- 
tary or  compelled  by  the  legal  system.  I  do  not  have  it  by  virtue 
of  a  reason  inherent  in  the  nature  of  things.  Not  because  my 
family  and  I  have  possessed  and  cultivated  a  field  for  one  hundred 
years  is  it  my  property;  but  the  legal  system  can  give  effective 
orders  to  others  that  they  leave  it  alone.  If  Merkel's  assumption 
were  correct,  the  State  would  have  no  right  to  protect  itself  and 
its  subjects  against  predatory  attacks  of  barbaric  hordes  and  na- 
tions. It  would  only  protect  a  "  factum."  Yet  the  spontaneous 
feeling  of  every  one  leads  to  a  different  conception,  viz.,  that  there 
exists  a  right  to  protect  peaceable  possession  and  culture  against 
barbaric  destruction,  whether  the  invader  had  the  capacity  to 
understand  this  or  not.  Not  for  a  moment  can  we  concede  that 
humanity  at  large  has  no  right  to  protect  itself  against  wild  beasts 

'"  "Criminalistische  Abhandlungen",  I  ("Zur  Lehre  von  den  Grund- 
eintheilungen  des  Rechts  und  der  Rechtsfolgen"),  1867,  p.  41,  pp.  104 
et  seq.  Cf.  also  Merkel,  "Zum  Reform  der  Strafgesetze,  ein  Vortrag" 
(Prag,  18G9),  and  more  recently  in  the  "Zeitschrift  für  die  gesaramte 
Strafreehtswissenschaft"  (1881),  pp.  noS  et  seq. 

*'  For  the  contrary  view,  and  especially  concerning  the  controversy 
as  to  the  possibility  of  wrong  without  guilt,  cf.  tiie  numerous  discussions 
l)y  Thou,  "Rechtsnorm  und  subjectives  Recht"  (1879),  pp.  71  et  seq. 
Ilowever,  for  an  adherent  of  the  "Norm"  theory  this  matter  has  its  special 
difficulties. 

475 


§  99]  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Part    1 1 

and  unreasoning  nature.  It  has  this  right.  It  merely  uses  it 
and  avails  itself  of  it  in  a  different  form  than  as  man  against  man ; 
wild  beasts  and  lifeless  objects  are  not  possessors  of  rights. 

The  logic  of  Merkel's  view  would  also  compel  the  judge  of  the 
civil  court,  before  ordering  a  debtor  to  pay  or  a  detainer  to  deliver, 
to  ascertain  whether  these  parties  had  realized  their  wrong ;  for 
without  this  preliminary  condition  no  legal  obligation  exists,  and 
the  judgment  is  not  intended  to  create  legal  obligations  but  merely 
to  declare  those  already  existing.  From  this  standpoint,  also, 
it  becomes  impossible  to  construe  the  differences  between  the  civil 
sanction  (i.e.,  payment  of  damages)  and  punishment  which  exist 
in  the  positive  law  and  are  uniformly  recognized  as  reasonable. 
If  the  civil  sanction  pursues  exactly  the  same  object  as  the  criminal 
sanction,  why  is  punishment  in  its  positive  development  governed 
by  laws  quite  different  from  those  of  the  civil  sanction?  Why, 
e.g.,  does  not  the  punishment  pass,  as  does  generally  the  obliga- 
tion to  indemnify,  to  the  heirs  of  the  party  originally  obligated  ?  ^^ 
In  this  complete  disintegration  of  the  conception  of  punishment 
it  is  no  longer,  as  a  matter  of  fact,  possible  to  arrive  at  the  concep- 
tion of  retribution  which  Merkel  on  the  other  hand  finds  realized 
in  criminal  justice.  Private  law  and  civil  justice  have  essentially 
nothing  to  do  with  the  conception  of  retribution,  but  nevertheless 
punishment  according  to  its  nature  should  not  be  different  from 
the  criminal  sanction. 

The  postulate  ^^  of  a  comprehensive  foundation  of  criminal  law 
is  contained  in  the  following  principles :  ^^  "  To  each  and  every 
living  being  there  is  conceded  the  right  to  maintain  and  preserve 
himself  and  the  conditions  upon  which  depend  his  being  and  his 
existence.  To  the  struggle  for  the  latter  belongs  the  reaction  which 
in  social  life  responds  to  the  crime,  whether  individuals  or  the 
community  take  part  in  the  same.  For  the  crime  which  is  not 
followed  by  retribution  jeopardizes  all  of  those  conditions."     Pun- 

12  In  respect  to  this,  cf.  Binding,  "Die  Normen  und  ihre  Uebertretung." 
In  spite  of  which,  the  principle  so  excellently  developed  by  Merkel  is 
sound,  \iz.,  that  to  a  certain  extent  and  under  certain  conditions 
the  civil  sanction  may  represent  punishment  and  take  its  place  and  that 
the  State  should  inflict  punishment  for  an  act  only  in  so  far  as  the  civil 
sanction  does  not  suffice.  Cf.  Merkel  also  in  the  "Zeitschrift  für  die 
gesammte  Strafrechts-Rissensehaf t "  (1881),  pp.  582,  583. 

13  " Criminalistisehe  Abhandlungen",  I,  pp.  113,  114. 

1*  I  do  not  believe  that  Merkel,  if  he  would  maintain  the  principles 
quoted,  can  avoid  having  Hegel  as  the  basis  for  his  fundamental  views 
of  criminal  law,  as  he  curiously  enough  appears  (?)  to  desire.  Cf.  "Zeit- 
schrift, etc.",  p.  555. 

476 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  (;§  99 

ishment  is,  indeed,  the  reaction  against  acts  liostile  to  the  condi- 
tions upon  which  the  Hfe  of  society  depends,  —  a  reaction  which 
necessarily  takes  place  where  society  as  a  whole  would  still  express 
itself  as  being  moral.  Moreover,  the  way  and  maimer  in  which 
]\Ierkel  rejects  a  retribution  which  should  sever  itself  from  social 
interests  and  which  at  the  same  time  would  not  be  in  a  position 
to  adopt  the  relative  theories  of  punishment,  must  command  our 
entire  accord.  But  one  cannot  perceive  the  bridges  which  on  one 
hand  connect  these  interests  with  that  retribution,  and  on  the 
other  lead  from  that  retribution  to  that  vague  residue  of  simple 
coercion  (sanction)  into  which  punishment  is  reduced. 

Halschner.  —  Hälschner  ^^  also  uses  Hegel's  ideas  as  his  founda- 
tion. But  he  is  not  satisfied  with  the  mere  dialectic  necessity  of 
punishment,  and  consequently  (more  even  in  his  latest  works  than 
in  his  earlier)  he  is  under  the  influence  of  the  idea,  which  sees  in 
the  law  merely  rules  for  the  will  of  those  who,  in  the  concrete 
case,  are  without  rights.  Thus,  the  right  is  merely  the  vacuum 
which  is  left  to  those  entitled  to  something  when  it  is  appropriated 
by  those  not  entitled.  This  is  a  view  which  we  have  already  seen 
in  Merkel,  but  which  has  since  found  its  clearest  expression  in  the 
"  Norm  theory  "  of  Binding.  Hälschner  ^^  quite  properly  asserts 
that  the  legal  rule  should  be  a  moral  one ;  and  he  is  also  quite  cor- 
rect in  maintaining  that  law  should  not  be  merely  the  compass,  or 
at  any  rate,  a  skilled  adviser  of  power,  but  rather  that  law  and 
morality  be  in  themselves  a  power.  But,  peculiarly  enough,  he 
is  unable  to  assert  for  law  in  itself  either  activity  or  coercive  power 
(sanction) .  This  activity  and  coercive  power,  apart  from  cases  of 
self-defense,  first  arise  through  the  State  "  in  which  the  organism 
of  law  acquires  its  finite  existence  ",^'  and  in  which  "  every  exer- 
cise of  vengeance  is  designated  as  not  merely  formal,  on  account 
of  the  danger  of  its  getting  beyond  control,  but  also  as  material, 
as  unlawful,  because  morally  unlawful,  and  improper."  ^^  Pun- 
ishment is  that  coercion  which  is  used  against  an  active  opposition 
of  the  will  to  the  law,  or  against  a  force  done  to  the  law,  or  against 
a  power  which  has  intruded  into  those  spheres  over  which  tiie 
State  alone  predominates,  and  which  is  therefore  designed  to  repel 

"^  Cf.  "System  des  preiissischon  Strafrcehts",  I  (185S),  pp.  11-17. 
pp.  435-443;  "Die  Lehre  vom  Unrecht  und  seinen  Formen",  in  "Ge- 
riehtssaal"  (18G9),  pp.  11-3G  and  pp.  81-114  (also  pulilished  separately), 
also  "Gerichtssaal"  (1876),  pp.  401-440.  But  especially  see  "Das 
gemeine  deutsche  Strafrecht",  Vol.  I  (1881),  pp.  3-30,  pp.  558-574.  Ihe 
citations  following  are  from  the  work  last  mentioned. 

■«  Pp.  13,  14.  '^  P.  12.  '«  Pp.  26,  27,  30. 

477 


§  <)!»]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW       [Pakt   II 

the  despotic  encroachment  of  the  indivichial  will  upon  the  legal 
power  of  the  State.  Its  purpose  is:  "to  administer  justice  by 
the  elimination  of  wrong,  by  the  restoration  of  the  legal  condition 
and  the  undiminished  power  of  the  State.  In  this  sense  and  not 
for  the  sake  of  a  limited  utilitarian  purpose,  to  punish  is  a  moral 
necessity."  ^^  However,  the  sanction  should  not  be  unrestrained, 
nor  should  the  criminal  be  seized  by  tlie  power  of  the  State  "  as 
something  absolutely  without  a  right."  Justice  should  be  satis- 
fied by  a  punishment  which  completely  corresponds  in  kind  and 
amount  to  the  guilt  in  respect  to  all  elements  under  consideration.^" 
And  yet  the  various  possible  purposes  of  punishment  (security, 
etc.)  should  be  attained.  A  conflict  of  these  various  purposes, 
Hälschner  feels,  is  possible  only  when  exclusive  predominance  is 
given  to  some  one  of  these  purposes,  or  if  there  is  assigned  to  pun- 
ishment some  purpose  foreign  to  its  ideal  nature  ( ?) . 

We  have  already  frequently  pointed  out  that  a  combination  of 
the  relative  criminal  theories,  either  singly  or  collectively,  with 
a  theor}^  which  believes  that  an  absolute  standard  of  justice  must 
be  established  for  punishment,  is  impossible.  The  so-called  inner 
agreement  of  such  an  absolute  theory  and  a  relative  theory  is 
and  remains  simply  a  pious  wish,  which  will  not  bear  up  under 
examination  in  the  individual  cases.  For  example,  suppose,  in 
the  light  of  that  theory,  we  try  to  answer  the  simple  question 
whether  or  not  the  legislative  power  in  a  case  of  special  temporary 
danger,  e.g.,  in  a  time  of  special  excitement,  has  the  right  to  mate- 
rially increase  the  severity  of  the  punishment  for  certain  oflFenses, — 
as  it  were,  to  make  an  example.  But  apart  from  this,  the  doctrine 
cannot  free  itself  from  numerous  inconsistencies.  It  is  asserted 
that  coercion  is  in  no  way  an  element  of  law,  and  yet  it  is  immedi- 
ately stated  that  coercion  is,  on  other  grounds,  not  only  morally 
possible  but  even  necessary  for  the  law.^^  But  if  a  thing  is  neces- 
sary for  law,  then  it  is  also  included  in  the  nature  of  law.  The 
point  of  view  which  lies  at  the  basis  of  this  is  incorrect.  It  is 
assumed  that  law  can  be  completely  separated  from  the  other 
relations  of  human  life.  As  such  it  requires  no  coercion.  But  as 
soon  as  law  is  considered  and  asserted  as  existing  among  these 
relations  of  life  and  dealing  with  them,  then  coercion  becomes  neces- 
sary. But  this  last-mentioned  point  of  view  is  alone  permissible. 
A  law  which  floats  in  the  air,  withdrawn  from  all  relations  of  life, 
is  a  will-o'-the-wisp. 

19  P.  32.  2»  P.  565.  21  p.  11, 

478 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§  99 

As  to  Hälschner's  comment  that  the  rules  of  law  applicable  to 
monarchs  do  not  cease  to  be  legal  rules  because  no  coercion  sanc- 
tion can  be  applied  to  monarchs,  he  overlooks  the  fact  that  coer- 
cion may  exist  without  a  civil  or  a  criminal  procedure.  A  very 
effective  coercion  may  exist  by  \irtue  of  the  pressure  of  the  united 
conditions  of  things,  without  there  being  an  especially  organized 
machinery  for  giving  effect  to  the  same.  The  coercion  might 
very  well  e.g.,  consist  in  this,  viz.,  that  the  monarch,  by  the  disa- 
vowal of  such  a  legal  duty,  might  encounter  opposition  to  legal 
rules  otherwise  intended  by  him,  and  in  glaring  cases  could  not 
avoid  a  breach  of  the  constitution  which  would  be  prejudicial  to 
his  position.  The  coercion  exercised  by  the  law  can  also  very  well 
consist  in  this,  viz.,  that  the  law  deny  to  him  who  violates  its  pro- 
visions any  assistance,  or  that  it  recognize  the  right  of  self-defense 
on  the  part  of  those  ofTering  opposition,  etc.^  Coercion  is  abso- 
lutely necessary,  because  the  law  must  be  valid  generally ;  and 
the  law,  as  opposed  to  the  individual  will,  must,  because  of  this 
very  generality,  not  yield  but  must  compel.  Consequent!}^  it  is 
not  apparent  wherein  vengeance  specifically  differs  from  punish- 
ment. Historically,  as  Hälschner  admits,  it  is  the  root  from 
which  the  criminal  law  sprang.  Therefore  theory  requires  identity 
with  it  in  its  fundamental  essence ;  and  has  not  the  State  often 
given  its  assent  to  the  exercise  of  vengeance?  Moreover,  in  the 
initial  stages  it  is  certainly  not  necessarih'  immoral,  and  the  less 
so  since  it  can  then  hardly  be  distinguished  from  self-defense.  If 
in  those  times  a  bold  aggressor  had  merely  encountered  opposi- 
tion as  limited  as  is  our  modern  self-defense,  and  never  had  to 
fear  anything  further,  then  certainly  {e.g.,  as  with  the  early  Ger- 
mans) there  would  never  have  existed  a  sure  legal  protection. 
And  the  same  thing  can  be  asserted  if  the  range  of  self-defense 
had  been  limited  merely  to  the  protection  of  one's  own  rights. 
It  is  not  so  limited  even  to-day.  In  the  initial  stages  of  devel- 
opment, when  there  is  no  strong  governmental  power,  such 
egoism  would  destroy  all  further  development  of  the  law  and 
of  the  State;  yet,  in  times  of  danger,  when  another's  right  is 
boldly  attacked,  we  recognize  the  correctness  of  the  principle : 
"  Tua  res  agitur."     And  it  is  not  apparent  how  punishment  should 

"  There  are  also  rules  whioh  make  up  a  border  pro\-iiiee  between  law 
and  morality,  rules  which  may  equally  be  regardt'd  as  moral  or  as  legal 
(accompanied  by  legal  prosecution)  or  in  which  it  is  doubtful  whether 
legal  prosecution  can  be  considered. 

479 


§  99]  HISTORY    OF   THE    THEORIES    OF    CRIMINAL    LAW      [Pakt   II 

be  a  necessary  consequence  of  wrong  deserving  punishment,  if 
it  did  not  exist  prior  to  the  State. 

All  this  is  but  a  result  of  our  knowledge  of  the  ideas  which 
Herbart  first  promulgated  (cleverly  but  incorrectly)  :  that  the 
sanction  for  the  law  did  not  originate  with  the  law.  Thus  the 
sanction  must  first  have  been  introduced  from  without  the  law, 
and  the  same  would  hold  true  of  punishment,  which  should  be  a 
sanction.  But  since  punishment  should  also  be  distinguished 
from  that  which  we  customarily  term  as  sanction  in  the  adminis- 
tration of  private  law,  Hälschner  does  this  by  denying  that  the 
administration  of  private  law  contains  a  sanction  (although  this 
is  contrary  to  the  simple  and  natural  way  of  viewing  the  matter) , 
and  ascribes  the  private  law  duty  to  indemnify  to  the  injured 
person's  power  over  the  property  of  the  one  doing  the  damage.-^ 
Finally,  it  is  not  an  improvement  upon  Hegel's  classification  of 
civil  wrong  and  criminal  wrong,  to  conceive  the  latter  as  a  wrong 
in  which  the  criminal  essentially  places  himself  in  opposition  to 
the  general  legal  system.     We  shall  revert  to  this  point  later. 

Berner.  —  In  spite  of  many  excellent  comments  for  which  we 
are  indebted  to  Hälschner's  discussions,  his  involved  theory  does 
not  leave  a  satisfying  impression  and  is  in  many  respects  a  very 
difficult  one  for  precise  examination.  Much  more  satisfactory  is 
the  simple  theory  of  Berner.-^  Following  mainly  the  speculative 
system  of  ethics  of  J.  U.  Wirth,^^  he  clearly  and  definitely  changes 
Hegel's  idea  of  elimination  of  the  wrong  to  one  of  retribution  (meas- 
ured according  to  the  intention  ^^  as  evidenced  by  the  external 
injury).  Moreover  —  and  this  is  a  special  feature  of  Berner's 
view,  wherein,  in  our  judgment,  he  is  quite  correct  —  he  main- 
tains that  retributive  justice  leaves  a  certain  province  for  free 
discretion  äs  to  the  quantum  of  the  punishment  (which  however 
is  again  conceived  as  suffering  inflicted  through  the  senses)  .^^ 

23  p.  21.  The  private  law  duty  of  compensation  in  torts  is  hereby 
based  upon  quasi-contract,  as  it  was  also  by  Binding  ("Normen",  I, 
pp.  222,  223).  It  is  a  species  of  "negotiorum  gestio."  In  opposition  to 
Hälschner,  cf.  especially  Merkel  in  the  "Zeitschrift  für  die  gesammte 
Strafreehtswissenschaft "  (1881),  pp.  580  et  seq. 

2^  "Lehrbuch  des  deutschen  Strafrechts",  §§  28-32. 

25  Concerning  this,  see  Laistner,  "Das  Recht  in  der  Strafe"  (1872), 
pp.  153  et  seq.  ^e  "Lehrbuch",  §  31. 

27  "To  ascertain  that  which  is  deserved  herein  is  the  province  of  em- 
piricism rather  than  of  formal  calculation.  In  this  attention  is  to  be 
given  especially  to  the  existing  conditions  of  society  and  also  to  national 
morals  and  opinions  conditioned  as  they  are  by  relations  of  time  and 
space.  In  the  place  of  comparison  in  kind  ('talio')  we  retain  mereh' 
the  idea  of  proportion  and  the  criterion  of  experience."     §  28  {cf.  ante). 

480 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§  99 

Within  this  province  the  purposes  of  deterrence  and  reformation 
can  and  should  exercise  an  infiueiice  upon  the  amount  of  the  pun- 
ishment. "  Here  are  the  limits  within  which  justice  allows  the 
realization  of  these  purposes."  And  within  these  limits  (as  had 
already  been  demonstrated  by  Abegg  and  Wirth)  both  these 
purposes  are  simultaneously  achieved  with  the  retributory 
punishments.  Thus,  according  to  Berner,  the  relative  theories  of 
criminal  law  ultimately  acquire  an  extensive  influence  upon  de- 
termining the  amount  of  the  punishment. 

Kitz.  —  Hegel's  theory  receives  from  Kitz  a  new  tendency 
which  is  deserving  of  notice.^^  It  deals,  we  may  say,  more  with 
inner  and  subjective  matters,  thus  practically  veering  around 
towards  the  theory  of  reformation.  The  immoral  act  is  declared 
not  so  much  to  become  "  nil  "  as  to  be  undone,  rescinded  ("  Re- 
scission theory").  The  intention  which  has  not  yet  become  an 
act,  which  has  not  manifested  itself  to  the  external  Avorld,  may 
be  rescinded  by  being  given  up,  by  simply  being  withdrawn.-^ 
But  where  the  intention  has  become  an  act,  its  rescission  requires 
a  positive  contrary  act,  an  opposite  treatment  of  the  will ;  and 
since  the  offender  has  acted  in  order  to  furnish  gratification  to  his 
baser  nature  and  desires,  it  requires  his  receiving  pain  inflicted 
through  the  senses,  receiving  punishment.  As  it  had  already  been 
stated  in  the  Decretum  of  Gratian  :  ^°  "  Qui  peccator  est,  et  quem 
remordet  propria  conscientia,cilicioaccingatur  et  plangat  .  .  .  pro- 
pria delicta  ...  et  cubat  et  dormiat  in  sacco,  ut  pra?teritas  deli- 
cias,  per  quas  offenderat  Deum,  vitte  austeritate  compenset."  ^^ 

Kitz  has  very  correctly  combated  certain  objections  which  could 
be  raised  against  this  theory.  Thus,  there  is  the  objection  that 
in  actual  life  an  equalization  of  the  pleasure  of  the  crime  and  the 
suffering  of  the  punishment  cannot  be  established.  A  principle, 
however,  is  not  valueless,  because  in  its  application  to  concrete 
life  a  certain  province  for  the  exercise  of  discretion  cannot  be 
avoided.  Moreover,  it  cannot  be  asserted  that,  according  to 
Kitz's  theory,  an  action  that  had  no  effect  must  remain  unpunished, 
since  the  essence  of  the  intention  as  manifested  does  not  lie  in  its 
consequences;  an  absolute  rascal,  in  whom  a  slight  sensual  entice- 
ment furnished  a  motive  for  the  commission  of  a  grave  oft'ense, 

^^  "Das  Princip  der  Strafe  in  seinem  Ursprünge  aus  der  Sittlichkeit" 
(Oldenburg,  1874). 

-^  Cf.  p.  25 :   "In  my  heart,  my  deed  was  not  my  own." 
'0  Causa  33  qu.  3,  1,  "De  poenitentia." 
31  Thus  p.  35. 

481 


§  lOÜJ  HISTORY    OF   THE   THEORIES    OF    CRIMINAL   LAW      [Paut   II 

(Iocs  not  for  this  reason  got  off  with  a  slif^ht  punishment.  That 
desire  for  sensual  gratifieation,  existing  prior  to  the  act  and  become 
habitual,  is  to  be  considered  as  the  motive,  and  thus  the  punish- 
ment rather  increased.  The  distinction  between  punishable  crime 
and  mere  immorality  is  marked  by  the  fact  that  the  function  of 
the  State  is  limited  to  counteracting  encroachments  upon  moral 
freedom,  and  that  within  this  province  the  State  fixes  and  controls 
the  suffering  afflicting  the  senses  which  seems  necessary  for  the 
rescission  of  the  immoral  intention.  It  is  perfectly  manifest  that 
herein  the  State  has  to  aim  at  the  conversion  of  the  intention  of 
the  criminal  (and  also  his  reformation) .  For  this  reason,  imprison- 
ment seems  an  especially  commendable  form  of  punishment,  while 
the  death  penalty,  on  the  contrary,  is  objectionable. 

However,  as  the  reference  to  the  penance  of  the  Canon  law 
shows,  the  character  of  temporal  punishment  (i.e.,  inflicted  by 
the  State)  is  not  preserved  in  Kitz's  rescission  theory.  This 
temporal  punishment  attains  greater  perfection,  the  more  it  is 
calculated  to  bring  about  the  inner  reformation  of  the  criminal ; 
but  first  and  foremost,  it  has  in  view  as  its  object  not  the  criminal 
but  the  purposes  of  the  community.  The  logical  outcome  of 
Kitz's  rescission  theory  is  a  theory  of  reformation,  on  one  hand 
limited  by  a  consideration  that  means  of  reformation  may  never 
be  a  pleasure  for  the  condemned,  but  rather  suft'ering,  and  on  the 
other  hand  materially  restricted  because  the  means  of  reformation 
must  be  suffering.  According  to  Kitz,  the  State  has  no  further 
right  to  punish,  if  the  offender  has  already  voluntarily  undergone 
the  evil  which  (according  to  the  view  of  the  State  and  also  accord- 
ing to  the  statute)  must  be  inflicted  upon  him.  This  would  be 
the  perfect  punishment.  In  this  the  official  character  of  the  pun- 
ishment vanishes.  And  finally,  it  is  a  fiction  that  a  deed  which 
has  been  done  can  be  undone  by  the  contrary  desire  of  its  author ; 
for  this,  as  the  ancients  said,  could  not  even  be  accomplished  by 
the  gods.  Even  an  evil  intention  and  desire  cherished  and  nour- 
ished in  the  inner  recesses  of  the  soul  leaves  its  trace.  The  reality 
of  criminal  law  cannot  be  founded  upon  a  fiction. 

§  100.  Combination  of  the  Theories  of  Hegel  and  Fichte.  — 
Heinze.  —  The  theory  of  Heinze,^  which  in  part  at  least  stands 
upon  the  basis  of  Hegel,  is  complicated  and  perhaps  difficult  to 
comprehend  in  the  sense  in  which  it  was  intended.     One  cannot 

1  In  Von  Holtzendorff's  "Handbuch  des  deutsehen  Strafrechts",  I, 
pp.  321-344. 

482 


Chapter  VI]  CRIMIXAL   THEORIES    IX    GERMANY  [§  100 

deny  its  searching  glance  into  the  nature  of  wrong,  of  law,  and  of 
punishment ;  but  on  the  other  hand  (as  Laistner's  criticism  ^ 
has  revealed  and  manifested)  it  exliibits  a  certain  wavering  back 
and  forth  between  various  principles  and  a  certain  obscurity. 

Heinze  very  correctly  perceives  that  a  proper  theory  of  criminal 
law  must  also  be  adapted  ^  to  historical  development  and  to  the 
various,  and  perhaps  also  imperfect,  manifestations  of  punish- 
ment. He  also  perceives  that  a  correct  theory  of  criminal  law  has 
to  consider  principally,  although  not  exclusively,  punishment 
inflicted  by  the  State.  From  this  point  of  view,  Heinze  very 
correctly  observes  that  punishment  does  not  need  to  be  an  "  evil  " 
or  a  "  suffering."  It  is  regarded  as  the  specific  substance  of  civic 
punishment  that  it  be  something  done  by  the  criminal,  which  should 
be  the  guiding  principle  in  the  fixing  of  imprisonment,  along  with 
which  the  punishment  of  banishment  (complete  or  partial  banish- 
ment from  the  legal  community)  is  recognized.  Both  of  these 
punishments  are  diminutions  ("  ^Minderung  ")  of  rights  {i.e.,  of 
the  criminal) .  The  undergoing  of  the  punishment  by  performance 
of  something  and  the  fulfilment  of  an  obligation  frees  from  the 
diminution  of  right  in  the  future,  yet  it  directly  asserts  the  diminu- 
tion of  right  in  the  most  direct  and  actual  manner ;  ^  and  it  follows 
from  this  conception,  as  Heinze  argues,  that  it  is  an  error  to  assume 
that  punishment  cannot  attain  realization  until  the  beginning  of 
physical  atonement.  No  one  can  deny  that  a  criminal  sentence, 
in  itself,  fulfils  a  part  of  the  function  of  punishment ;  ^  a  portion 
of  its  activity  takes  place,  even  though  it  was  certain  from  the 
beginning  that  the  punishment  would  not  be  inflicted.  Even 
before  the  commission  of  the  crime,  the  punishment  has  an  inde- 
pendent existence.  In  the  criminal  statute  or  in  the  rule  of  crimi- 
nal law  founded  upon  custom  two  aspects  may  be  distinguished ; 
the  ideal  one  lies  in  the  judgment  tliat  the  punishment  is  tlie  legal 
equivalent  of  the  crime ;  the  practical  one,  in  the  order  that  tiiis 
punishment  shall  be  inflicted  upon  the  author  of  the  crime.  The 
punishment  is  also  a  manifestation  of  the  criminal's  unworthiness. 

These  two  ways  of  conceiving  punishment,  as  they  are  advanced, 
cannot  be  reconciled.  It  is  possible,  if  one  regard  the  manifesta- 
tion of  the  unworthiness  of  the  criminal  as  the  cardinal  element, 

=  Pp.  169-178.  3  P.  329.  "  P.  327. 

5  The  autlior  of  this  book  had  already  expressed  these  thoughts  in 
"Grundlagen  des  Strafreelits".  pp.  3,  84:  There  can  be  no  punishment 
without  public  disapproval  of  Ww  act,  but  the  punishment  may  possibly 
consist  merely  in  public  disapproval. 

483 


§  100]  HISTORY   OF  THE   THEORIES   OF   CRIMINAL   LAW      [Part   II 

to  proceed  from  tliis  to  an  accompanying  diminution  of  ri<^lit  or 
performance  of  punishment,  and  also  even  to  banishment.  But 
the  reverse  cannot  be  accompHshed.  The  community  has  no 
further  interest  in  him  who  is  expelled,^  and  there  is  no  special 
need  to  proclaim  the  unworthiness  of  him  who  has  paid  what  he 
owes.^  It  is  also  clear  that  if  there  can  still  be  an  effect  to  punish- 
ment when  a  real  diminution  of  rights  in  individual  cases  is  im- 
practical, real  diminution  of  rights  cannot  be  the  essence  of 
punishment.^  Moreover,  if  banishment,  according  to  Heinze's 
conception,  is  the  prototype  of  public  punishment  and  is  little  by 
little  mitigated  by  public  punishment,  then  would  not  the  criminal 
have  the  right  to  choose  banishment  from  the  society  of  the  State 
instead  of  undergoing  public  punishment?  Heinze  is  able  to 
avoid  this  result,  which  would  be  quite  acceptable  to  our  modern 
criminal  world,  only  by  appealing  to  the  civilizing  mission  of  the 
State.  Suddenly  the  State  appears  as  the  one  formally  injured. 
"  The  crime  within  the  State  is  the  violation  of  that  law  of  life 
operative  in  civil  society  and  in  the  State  and  indispensable  to  its 
progress.  .  .  .  Through  the  crime  the  criminal  formally  becomes, 
in  respect  to  the  State,  a  wanton  violator  and  despiser  of  the  legal 
system  of  the  State  and  materially  a  renegade  of  that  civilization 
which  furnishes  the  basis  for  rights."  For  this  reason  "  there 
cannot  be  ascribed  to  the  individual  criminal  the  right  of  choosing 
a  voluntary  withdrawal  ^  from  the  State  and  the  association  of 
civilized  mankind  in  preference  to  undergoing  the  punishment 
which  will  rehabilitate  him  in  the  State.  This  would  be  directly 
to  allow  him  that  which  constitutes  the  essence  of  the  worst  crime, 
viz.,  a  complete  lapse  from  civilization  expressed  and  accomplished 
by  a  withdrawal  of  one's  self  from  the  State  and  from  ci^'ilized 
humanity."  According  to  this,  any  one,  who,  as  a  hermit,  be- 
took himself  to  a  desert  island  would  thereby  commit  the  worst 

^  Considering  it  practically,  what  would  be  thought  if  a  society  first 
expelled  one  of  its  members  and  afterwards  punished  him  under  its  by-laws  ? 
But  the  reverse  is  quite  conceivable. 

'  And  yet  a  certain  efifect  of  grave  crimes  that  have  been  atoned  for, 
an  effect  which  would  apply  to  honor,  although  perhaps  no  longer  to  be 
fixed  by  law  can  never  be  eliminated.  Such  a  thing  is  also  not  to  be 
desired. 

^  There  is  hereby  manifested  the  correctness  of  the  course  of  thought 
pursued  by  me  in  a  reverse  fashion  in  the  "Grundlagen  des  Strafrechts", 
which  Heinze  however  has  scarcely  noticed. 

'  The  indi\idual  State  does  not,  however,  completely  represent  this 
general  union,  particularly  since  everj'  State  is  not  equallj^  civilized.  For 
the  contrary  view,  see  Laistner,  p.  173  and  Heinze's  own  statements  in 
opposition  to  Stahl,  Heinze,  p.  300. 

484 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§100 

crime  conceivable.  The  doctrine  involves  the  following  simple 
fallacy  :  One  may  regard  grave  crimes  as  being  also  a  lapse  from 
civilization,  but  not  every  withdrawal  from  civilization  is  a  grave 
crime.  If  the  punishment  rehabilitates,  then  it  is  a  right  and  not 
a  duty  of  the  criminal.  "  Beneficia  non  obtruduntur."  If  one 
desires  to  insist  strongly  on  the  philosophic  attitude,  a  moral 
duty  does  not  ahvays  give  rise  to  a  right,^°  and  the  civilizing  duty 
of  the  State  does  not  carry  with  it  the  right  to  punish.  Otherwise 
there  could  be  inferred  from  the  civilizing  duty  of  the  State  the 
right  to  improve  (all)  individuals  through  punishment  as  far  as  it 
might  seem  desirable  to  the  State. 

As  a  matter  of  fact,  Heinze's  theory,  as  supported  later  by 
Laistner,  reveals  two  distinct  circles  of  thought.  To  the  system 
of  Hegel  ^^  belongs  the  idea  of  the  declaration  of  nullity  or  base- 
ness of  the  crime  ;  to  Fichte  belongs  the  thought  that  crime  breaks 
the  legal  union  between  the  criminal  and  the  State,  and  that  this 
is  reunited  by  punishment.^-  ''  If  we  inquire  after  the  embodi- 
ment of  the  penal  power,  on  both  sides  we  are  told  it  is  the  State  ; 
the  one  State  as  the  defender  of  rights,  the  other  State  as  the  party 
injured,  which  relies  not  upon  its  criminal  law  but  rather  upon  its 
missionary  duty."  However,  we  do  not  subscribe  to  that  severe 
judgment  which  Laistner  ^^  later  passes  upon  Hegel's  theory,  after 
he  had  in  the  beginning  praised  that  "  Janus  head  "  which  Heinze 
in  a  somewhat  mysterious  manner  had  set  up  as  the  only  correct 
starting-point.  We  are  rather  of  the  opinion  that  the  ideas  of 
Hegel  and  Fichte  may  quite  well  be  joined  in  a  certain  unity ; 
and  we  can  express  to  Heinze  the  appreciation  of  science  for  his 
suggestion  in  this  respect.  But  the  way  in  which  it  is  sought  to 
bring  about  this  unity  is  in  our  opinion  misleading. 

And  misleading  also  is  the  way  in  which  the  relative  purposes 

>"  From  the  moral  duty  e.g.  to  feed  children,  there  does  not  arise  the 
right  to  do  so  at  another's  expense,  —  indeed  there  arises  no  definite  right 
against  others. 

"  Cf.  e.g.  p.  327  :  "Punishment  is  the  right  inherent  in  the  crime." 

'2  "Not  punishment,  but  crime  and  punishnunit  together  must  be  re- 
garded as  the  Janus  head,  —  the  face  with  the  ft^atures  of  WTong  is  the 
crime  and  the  face  with  the  features  of  justice  is  tlie  punisliniont."  Ileinzo, 
p.  327.  Such  a  figure  can  be  made  use  of  at  thi>  end  of  a  deduction  in 
order  to  make  it  more  clear  and  impressive;  but  at  the  lieginniiig  of  the 
deduction  it  leads  to  the  error  of  confusing  the  figure  and  the  deduction 
and  thereby  even  itself  to  become  uncertain. 

"  P.  175.  "And  the  web  is  so  loosely  woven  that  the  warp  and  woof 
can  be  distinguished  without  effort.  We  also  have  lyTC  before  us  one  of 
the  so-called  mixed  theories  to  which  the  criticism  of  its  own  author  as 
to  such  mixtures  may  be  applied." 

485 


§  101]  HISTORY   OF   THE   THEORIES   OF   CRIMINAL   LAW      [Pakt   II 

are  finally  inserted  in  Ileinze's  theory.  They  are  designated 
simply  as  "  accidental  purposes  of  punishment."  But  in  a  theory 
there  can  be  nothing  accidental.  One  can  not  thus  accidentally  ad- 
here to  an  absolute  principle,  nor  cherish  the  pious  thought  that 
these  relative  purposes  are  so  peaceably  reconciled  to  each  other 
or  to  the  principle  of  rehabilitation  or  of  banishment  or  to  the 
principle  of  pronouncing  the  unworthiness  of  the  criminal  or  his 
crime.  Ileinze  refers  here  to  the  operation  of  the  statute.  The 
statute  may  indeed  reassure  the  judge  but  not  the  legislator  or 
the  theories  and  their  philosophers.  And  since  (on  p.  333)  the 
justice  of  mere  police  penalties,  which  may  be  felt  as  keenly  as 
criminal  punishment,  is  founded  simply  upon  the  fact  ^^  that  the 
State  has  the  right  for  the  sake  of  the  public  welfare  to  gain  its 
end  by  means  of  threatening  with  punishment,  what  need  was 
there,  for  expounding  together  crime,  wrong,  and  punishment,  of 
"the  right  inherent  in  the  crime"  and  the  "Janus-head"? 
Would  not  the  theories  of  Bentham  and  Feuerbach  have  been  more 
simple  and  logical  ? 

Since  it  seems  to  be  a  natural  right  of  authors  to  place  their 
own  theories  at  the  end  of  their  investigations,  although  chrono- 
logically regarded  this  may  have  preceded  some  other  theory,  so, 
with  Heinze's  "  combination  theory  ",  we  will  take  leave  of  the 
description  of  the  evolution  of  Hegel's  principle  and  turn  to  the 
other  most  recent  theories.  Upon  the  whole,  either  they  amount 
to  a  renunciation  of  any  philosophic  explanation  (except  in  so  far 
as  they  are  content  in  the  belief  that  the  description  of  a  phenom- 
enon or  its  process  constitutes  its  explanation)  or  else  they  con- 
tain simple  reproductions  of  former  theories.  A  special  position 
can  perhaps  be  assigned  to  Binding's  theory,  which  will  be  men- 
tioned at  the  close. 

§101.  Von  Kirchmann. — ^  The  doctrine  of  Von  Kirchmann  ^ 
in  reality  entails  a  renunciation  of  every  theory  of  criminal  law. 
This  renunciation,  in  a  peculiar  manner,  reminds  one  of  Kant. 
But  closer  consideration  reveals  that  here  we  have  to  deal  merely 
with  the  shell  of  Kant's  philosophy,  and  not  with  its  true  kernel. 
According  to  Kant,  morality  consists  in  an  unquestioning  obedi- 
ence to  the  categorical  imperative,  in  this  direct  fact  of  our  per- 
ception.    Kant  understands  by  this  the  unconditional  submission 

"  As  to  the  relation  of  criminal  punishments  and  those  of  the  police, 
see  infra. 

1  "Die  Grundbegriffe  des  Rechts  und  der  Moral"  (2d  ed.,  1873). 

486 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§  101 

to  the  transcendental  principle,  existinjj;  in  God  of  development  or 
being.  But  Von  Kirchmann  derives  from  this  an  unquestioning 
obedience  towards  any  authority  whatsoever,  i.e.,  obedience  to 
every  authority  which  appears  absolute  to  the  individual.-  For 
this  power  (of  God,  but  also  of  the  ruler,  of  the  nation  as  a  whole, 
and  of  the  father  over  the  child  of  tender  years)  there  is  no  morality, 
since  it  considers  itself  sovereign  and  actually  exercises  sovereign 
prerogatives.^  Now  law  in  the  subjective  sense,  in  its  very  nature, 
consists  of  physical  power,  which,  on  one  hand,  is  strengthened 
and  protected  by  means  of  the  authorities,  and  on  the  other  by 
means  of  a  coercion  called  by  the  authorities  to  their  assistance, 
and  especially  by  means  of  threatening  with  e\il  for  any  case  of 
injury  done  to  this  power."* 

Criminal  law  is  thus  degraded  into  a  mere  means  of  deterrence. 
We  do  not  need  worry  our  heads  to  ascertain  whether  or  not  such 
a  conception  violates  the  sense  of  justice  and  morality  or  stands 
in  contradiction  with  other  known  facts.  For  the  settlement  of 
the  controversy  between  absolute  and  relative  theories.  Von  Kirch- 
mann has,  as  a  result  of  the  foregoing,  a  ready  and  simple  experli- 
ent.  "  Both  utility  and  morality  are  the  foundations  of  pun- 
ishment ;  the  former  for  the  authorities,  the  latter  for  their 
subjects."  ^  In  other  words,  the  individual  must  accept  all  that 
the  authority  ordains,  but  the  authority  may  do  what  it  pleases. 
There  is  justice  only  within  the  sphere  of  the  statute,  but  to  the 
statute  itself  the  standard  of  justice  cannot  be  applied.^ 

Schopenhauer.  —  Schopenhauer's  conception  of  law  and  of 
criminal  law  is  an  almost  perfect  reproduction  of  Feuerbach's 
theory  on  a  metaphysical  (Spinoza)  basis,  but  without  Feuer- 
bach's exact  presentation  in  detail.  In  accordance  with  his  gen- 
eral philosophic  doctrines,  Schopenhauer  does  not  require  a  special 
justification  for  punishment,  in  the  sense  that  no  injustice  be  done 
to  the  party  punislied.  For,  according  to  Schopenhauer,  the 
existence  of  the  individual  being  is  only  an  appearance ;    since  the 

2  "Grundbegriffe",  pp.  62  el  seq.,  and  especially  p.  65. 

3  P.  113. 

••  "Grundbes^iffp",  pp.  107  el  seq.,  p.  111. 

^  "Grundbegriffe",  pp.  165  el  scq. 

8  A  broader  theory  of  the  law  of  might  and  morality  ean  scarcely  be 
conceived.  Also  cf.  especially  p.  178.  "It  has  already  been  shown 
that  the  substance  of  morality  is  based  upon  the  accidental,  disconnected, 
and  often  doubtful  commands  of  various  authorities.  Von  Kirchmann 
also  in  1S48  published  a  pamphli't  which  was  intended  to  demonstrate 
the  worthlessness  of  all  judicial  practice."  ("Die  Werthlosigkeit  der 
Jurisprudenz,  ein  Vortrag".) 

487 


§  101]  HISTORY    OF   THE   THEORIES    OF    CRIMINAL    LAW       [Paut   II 

veil  of  the  "  Maja  "  does  not  permit  the  individual  to  see  the 
entire  truth,  the  individual  believes  himself  distinet  from  the  rest. 
Also,  if  the  individual  being  inflicts  suffering  upon  another,  this 
in  reality  brings  harm  to  himself,  and  as  a  result  every  evil  act 
carries  in  itself  its  own  retribution ;  a  further  retribution,  such  as 
vengeance,  is  absolutely  senseless  and  without  purpose.^  Law, 
the  State,  and  criminal  law  are  consequently  merely  external 
means  whereby,  in  the  world  of  appearance,  there  may  be  reduced 
to  the  narrowest  possible  limits,  with  a  certain  sacrifice,  the  doing 
of  harm,  which  is  the  result  of  the  irrepressible  "  egoism  "  with 
which  every  living  being  is  imbued.  Law  and  the  State  therefore 
have  nothing  to  do  with  true  morality,  which  is  only  in  the  common 
feeling,  in  the  recognition  that  one  is  merely  part  of  a  whole, 
although  law  has  its  origin  in  morality  to  the  extent  that  it  marks 
the  point  to  which  the  will  of  the  individual  can  go,  in  its  own 
assertion,  without  denying  the  existence  of  another  will,  which  is 
in  any  case  a  violation  of  morality.  The  State  is  based  upon  well- 
calculated  "  egoism  "  because  no  one  desires  to  suffer  wrong. 
Morality,  on  the  contrary,  desires  no  one  to  do  wrong.  Up  to  a 
certain  point  the  result  of  both  can  be  the  same.  "  A  Wolf  with  a 
muzzle  is  as  harmless  as  a  lamb."  The  criminal  statute,  i.e.,  the 
threat  contained  in  the  criminal  statute,  is  nothing  other  than  the 
"  muzzle  "  for  the  egoism.^  If  this  "  muzzle  "  required  victims 
in  the  enforcement  of  the  punishment,  then,  in  Schopenhauer's 
sense,  one  could  simply  find  consolation ;  to  meet  the  criticism 
that  the  criminal  must  have  been  sacrificed  for  others,  one  could 
say  that  in  reality  the  punishment  was  not  inflicted  upon  one  but 
upon  all.  And  also,  for  other  reasons,  it  would  be  permissible  to 
behead  as  many  as  one  might  choose,  since  the  beheaded  would 
all  be  dispatched  to  that  happy  land  of  indefinite  nothing  or  every- 
thing, the  "  Nirvana." 

However,  Schopenhauer  seems  to  have  an  indefinite  feeling  that 

'  Cf.  particularly:  "Welt  als  Wille  und  Vorstellung"  (2d  ed.  of  com- 
plete works  by  Frauenstädl,  Vol.  II,  1877),  I,  p.  418.  Moreover  it  deserves 
notice  that  the  theory  of  deterrence  has  been  gaining  adherents,  recently. 
Doubtless  this  has  been  furthered  by  the  exaggerations  and  extravagances 
of  the  theory  of  reformation,  and  also  by  the  apparent  simplicity  of  the 
theory  of  deterrence,  the  defects  and  contradictions  of  which  are  not 
\isible  to  the  purely  philosophical  \iew  of  those  who  are  not  jurists.  This 
also  holds  true  in  respect  to  the  indefinite  "Fear  and  DiscipUne  Theorj'" 
of  Vlrici  ("Gott  und  der  Mensch",  II,  1,  esp.  pp.  411  et  seq.),  Avho  in 
Opposition  to  Schopenhauer  proceeds  from  the  freedom  of  the  will  (cf. 
pp.  12  et  seq.). 

*  See  citation  above  ;   p.  408. 

488 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§  101 

since  all  are  as  one  and  hence  all  are  equal,  it  will  not  do  to  leave 
the  world  of  appearance  to  its  own  brutality.^  He  accordingly 
remarked  —  herein  reminding  one  of  Rousseau  —  that,  for  the 
security  of  his  life,  the  individual  has  pledged  his  life,  his  freedom, 
etc. ;  but  at  the  same  time  he  acknowledges,  since  a  pledge  ^°  has 
meaning  only  if  it  possesses  value,  that  a  certain  value  is  as  a 
matter  of  fact  attached  to  the  individual. 

And  so  Schopenhauer's  philosophy  varies  back  and  forth  be- 
tween the  world  as  it  actually  is  (the  "  thing  or  things  in  them- 
selves ")  and  the  world  of  appearance.  Schopenhauer  embarked 
upon  a  voyage  into  the  world  of  "  things  in  themselves  ",  which 
Kant  had  declared  to  be  impossible  and  of  which  he  believed  only 
a  fragment  could  be  acknowledged  in  the  "  practical  reason  " 
under  the  domain  of  ethics.  In  a  subjective  mood  (and  so  fre- 
quently that  the  reader  finds  difficulty  in  observing  it)  he  shifts 
the  scenery  between  the  world  of  appearance  and  the  world  in 
abstract.  Principles  which  according  to  Schopenhauer  can  have 
application  only  in  the  world  in  abstract  are  suddenly  applied  to 
the  world  of  appearance.  Practically  regarded,  it  is  the  philosophy 
of  the  "  blase."  If  things  become  disagreeable,  the  sensitive 
philosopher  retires  to  the  world  in  abstract ;  then  suddenly  the 
world  of  appearance  has  no  further  meaning.  Strictly  examined, 
the  State  and  law^  have  only  those  meanings  which  protect  the 
comfortably  located  philosopher  from  unpleasant  disturbances. 
In  criminal  law  particularly  he  can  be  little  interested.  He  him- 
self will  not  commit  a  crime.  For  character  is  unchanging  and  he 
acts  or  fails  to  act  as  necessity  dictates,  and  the  philosopher  knows 
his  character.  So,  criminal  law  is,  in  reality,  only  for  the  brutal 
masses,  or,  at  any  rate,  for  those  who  have  charge  of  their  dis- 
cipline and  prisons.  It  is  merely  sj^nipathy  that  connects  the 
philosopher  with  the  criminal. 

This  s\Tnpathy,  however,  does  indeed  lead  to  a  noble  sugges- 
tion, which  can  be  turned  to  good  account  in  the  criminal  law : 
We  are  made  of  the  same  material  as  the  criminal  whom  we  con- 
demn ;  we  all  share  his  guilt  with  him ;  therefore  we  may  not 
use  him  solely  as  a  means  for  accomplishing  other  purposes.     There 

"  IT,  p.  687:  "A  criminal  code  should  bo  nothing  other  than  a  list  of 
motives  in  opposition  to  criminal  acts." 

'"  The  theory  of  pledge,  under  which  the  theory  of  retribution  crept  in, 
is  introduced  by  Schopenliancr  (II,  p.  (3S6)  in  commendation  of  the  death 
penalty  for  murder.  But  why  is  it  not  also  in  commendation  of  the  death 
penalty  for  manslaughter  caused  by  negligence? 

489 


§  101]  HISTORY    OF   THE   THEORIES    OF    CRIMINAL    LAW       [Paut   II 

arc  many  evidences  of  deep  insight  on  Schopenhauer's  part  which 
one  must  a(hiiire.  And  even  if  one  regard  his  funflamcntal  prin- 
ciples as  absohitely  wrong,  one  can  only  agree  with  him  in  his 
considering  the  criminal  dispassionately  and  in  a  certain  sense  as 
a  product  of  nature,  and  in  his  application  of  the  punishment 
(like  Hierokles)  primarily  to  the  act  rather  than  to  its  author.^^ 
His  specific  statements  concerning  law  and  criminal  law,  where 
they  are  not  limited  by  his  philosophic  principle,  will  always  main- 
tain their  value.  In  conclusion,  he  rises  above  Feuerbach  in  that 
he  does  not  explain  crime  merely  by  sensual  motives,  and  that  he 
does  not  make  so  complete  a  separation  between  law  and  morality 
as  Feuerbach  would  have  done.^^ 

Dühring,  E.  von  Hartmann,  von  Liszt.  —  The  theory  of  criminal 
law  in  Diihring,^^  E.  von  Hartmann  ^*  and  von  Liszt  ^^  amounts 
to  a  mere  description  of  the  origin  of  criminial  law,  with,  however, 
a  repudiation  of  the  negative  tendency  of  ideas  of  retribution. 
According  to  these  writers,  criminal  law  developed  from  the  nat- 
ural impulse  for  revenge,  the  active  return  of  an  injury  received. 
This  impulse  towards  retaliation,  according  (especially)  to  E.  von 
Hartmann,  while  directly  related  to  the  impulse  of  self-preserva- 
tion and  of  necessary  defense,  unconsciously  serves  the  end  of 
creating  and  supporting  the  legal  system.  Later,  however,  it 
becomes  more  moderate,  and,  since  it  comes  to  be  exercised  by  the 
State  and  no  longer  by  individuals,  it  consciously  assumes  various 
purposes,  —  the  purpose  of  giving  security  to  the  community 
and  the  purpose  of  bringing  about  a  reformation  of  the  criminal. 

n  cf.  "Welt  als  Wille  und  Vorstellung",  II,  p.  685:  "According  to 
my  view,  there  lies  at  the  basis  of  criminal  law  the  principle  that  not 
particularly  the  man  but  rather  the  act  is  punished,  from  which  it  does 
not  follow  that  the  criminal  is  merely  the  material  substance  in  which 
the  act  is  punished." 

12  A  philosophy  such  as  that  of  Schopenhauer,  which  completeh'  denies 
the  freedom  of  any  one  and  which  nevertheless  maintains  the  unity  of  all, 
necessarily  wanders  back  and  forth  between  refined  sentiment  and  gross 
brutality.  In  this  respect  compare  the  discussion  in  "Die  beiden  Grund- 
probleme der  Ethik"  (pp.  238  et  seq.),  concerning  the  torture  of  beasts 
and  the  statements  in  "Welt  als  Wille",  II,  p.  687:  "The  damage  to  be 
avoided  gives  the  proper  standard  for  the  punishment  to  be  threatened, 
but  it  does  not  give  the  moral  value  (lack  of  value)  of  the  for].)idden  act. 
Therefore  the  law  can  justly  cause  penal  servitude  to  be  inflicted  for  allow- 
ing a  flower-pot  to  fall  from  a  window,  or  can  impose  labor  with  a  wheel- 
barrow for  smoking  tobacco  in  a  forest  in  the  summer,  although  this  be 
allowed  in  the  winter." 

13  "Kursus  der  Philosophie"  (1875),  pp.  219-243. 

"  "Phänomenologie  die  sittlichen  Bewusstseins "  (1879),  pp.  196-212. 
'5  "Das  deutsche  Reichsstrafrecht  systematisch  dargestellt"   (1881), 
§§  2-6,  pp.  2-24. 

490 


Chapter  VI]  CRIMINAL   THEORIES   IX   GERMANY  [§  101 

Abegg  had  previously  suggested  that  this  transformation  oi  the 
natural  impulse  was  the  last  step,  but  was  not  the  realization  of 
the  purpose  aiming  solely  at  human  welfare.  He  designated  it 
as  the  realization  of  justice.  Von  Liszt  ^'^  positively  rejects  this 
last  step :  everywhere  progress  lies  in  making  this  natural  impulse, 
as  a  power  of  nature,  ser\iceable  to  the  purpose  to  be  attained. 
Definiteness  of  aim  and  choice  of  means  suited  to  its  purpose  are 
the  criteria  of  all  progress.  E.  von  Hartmann  ^^  expressly  asserts  : 
"  Every  concession  to  the  demand  for  the  '  talio  '  {i.e.,  retril)ution 
in  kind)  for  its  own  sake  we  must  regard  as  immoral.  We  cer- 
tainly no  longer  inflict  punishment  because  sin  has  been  committed, 
but  rather  that  sin  may  not  be  committed."  This  view  does  not 
need  to  consider  justification  of  punishment  as  being  justice  in 
respect  to  the  individual  criminal.  The  natural  impulse  is  there 
and  as  such  has  its  justification. 

However,  E.  von  Hartmann's  remarks  concerning  the  possi- 
bility of  making  wrong  cease  to  be  harmful,  not  by  means  of  pun- 
ishment but  by  means  of  forgiveness,  show  that  here  a  certain  rem- 
nant of  contradiction  still  pre\'ails  (even  that  which  is  natural  is 
regarded  as  justified  "  per  se  ")  and  that  the  views  of  the  writers 
mentioned  do  not  contain  a  theory  but  merely  a  description.  It 
is  quite  evident  that  we  may  derive  from  them  neither  the  slightest 
information  as  to  the  function  of  legislation  nor  a  criterion  for  the 
criticism  of  the  historical  and  positive. 

^^on  Liszt,  however,  desires,  by  emphasis  upon  the  purpose  of 
punishment,  to  introduce  new  progress,  and  so  long  as  his  theory 
keeps  time  with  a  certain  indefinite  "  music  of  the  future  ",  it  pros- 
pers exceedingly.^^  Thus  he  says  :  "  Punishment  in  its  substance 
and  range  must  be  one  thing  if  it  would  prevent,  another  if  it 
would  reform,  and  still  another  if  it  would  furnish  security.  How- 
ever, it  is  only  seldom  and  for  the  most  part  unconsciously  that 
modern  legislation  cherishes  this  thought.  It  deals  in  the  same 
manner  with  both  the  incorrigible  habitual  tliief  and  the  criminal 
of  opportunity  who  is  crushed  with  repentance.  But  tlie  sharp 
emphasis  upon  the  element  of  purpose,  both  in  law  generally  and 
especially  in  punishment,  is  constantly  finding  countless  and  more 
important  adherents.     And  it  is  to  be  hoped  that  in  the  not  too 

1«  Cf.  ibid.,  p.  24  (§  6).  .      "  P-  '-10- 

'^  Von  Liszt,  "Das  deutsehe  Reiohsstrafrefht",  p.  4.  [Since  the  h'arned 
critic  wrote  the  above  text,  von  Liszt's  views  have  enlarjijed ;  he  now 
stands  as  the  leader  of  a  modern  school  of  thought  in  Germany.  Compare 
§  102«,  post.  —  Ed.] 

491 


§  1Ü2]  HISTORY    OF   THE   THEORIES    OF    CRIMINAL    LAW       [1^\UT    II 

<listaiit  future  the  time  will  have  passed  hy  when  the  demand  that 
the  State's  power  shall  not  without  aim  or  purpose  destroy  the 
lefj;al  rifi;hts  of  niem})ers  of  the  State,  can  be  dismissed  merely  as 
a  piece  of  rationalistic  determinism."  But  as  soon  as  he  begins  to 
proceed  from  such  generalities  to  practical  details,  it  becomes  mani- 
fest that  the  various  purposes  of  expediency  which  apparently  are 
reclining  so  harmoniously  together  commence  a  hard  conflict 
with  each  other.^^  Such  are  the  results  of  neglecting  that  prin- 
ciple of  justice  inherent  in  the  historical  aspect  of  the  subject. 
Ultimately  this  entire  tendency,  rejecting  every  absolute  prin- 
ciple (as  even  von  Liszt  ^°  cannot  deny)  rests  and  is  even  expressly 
placed  upon  the  doctrine  that  law  is  only  a  product  of  the  State 
will.  The  controversy  between  these  relative  theories  and  an 
absolute  principle  of  criminal  law  is  thus  a  continuance  of  the  old 
controversy  concerning  the  SUacov  vofim  and  the  hUaiov  (^vaet. 

§  102.  Binding's  Theory  of  the  Effect  of  Disobedience  to  a 
Kule.  —  And  here,  too,  is  the  point  of  connection  with  the  theory 
•of  Binding,  who  regards  the  right  to  punish  "  as  a  related  right  to 
obedience  on  the  part  of  offenders."  ^  Binding  regards  the  entire 
law  as  merely  the  sum  total  of  rules,  commands,  and  prohibitions, 
and  the  State  enacts  and  makes  use  of  these  rules.^  For  disobedi- 
ence to  a  rule  it  demands  satisfaction  in  the  punishment.^  Yet 
this  corporal  satisfaction  should  be  neither  revenge  nor  retaliation.' 
It  is  somewhat  like  payment  of  damages  in  private  law,  merely,  a 
right  of  the  State,  not  a  duty.  Whether  or  not  there  arises  this 
duty,  which  the  State  claims  for  itself  in  its  criminal  legislation, 
is  determined  by  the  consideration  whether  the  evil  of  not  punish- 
ing is  greater  for  the  State  than  the  evil  of  punishing,  —  since  the 

19  Von  Hartmann  e.g.  (p.  210)  says :  "Since  society  as  a  whole  is  more 
important  than  the  individual  criminal,  so  the  protection  of  society  is 
more  important  than  the  moral  discipline  of  the  criminal.  Therefore  the 
latter  can  be  followed  only  as  a  subsidiary  purpose  when  allowed  by  the 
chief  purpose,  the  protection  of  society." 

20  §2. 

1  Cf.  "Das  Problem  der  Strafe  in  der  heutigen  Wissenschaft"  in 
Grünhut'ii  "Zeitschrift  für  das  Privat-  und  öffentl.  Recht"  (1877),  pp. 
417-437.  Especially  cf.  "Grundriss  zur  Vorlesung  über  gemeines 
deutsches  Strafrecht"  (1879),   §70,  pp.  108-115. 

-  "Grundriss,  etc.",  p.  109. 

^  In  so  far  as  the  State  is  considered  as  acting  absolutely  without 
restraint,  it  is  not  clear.  Moreover,  in  the  very  first  principles  of  the 
^'Grundriss"  right  and  law  are  confused  with  each  other.  "Punishment 
is  the  loss  of  legal  rights  which  the  State  imposes  .  .  .  for  satisfaction 
for  an  (of  the  offender)  (his)  irreparable  breach  of  right,  in  order  to  main- 
tain the  authority  of  the  violated  law." 

■*  "Grundriss",  p.  110. 

492 


Chapter  VI]  CRIMINAL   THEORIES   IN    GERMANY  [§  102 

punishment  is  also  an  evil,  and  certainly  not  only  for  those  upon 
whom  it  is  inflicted. 

Von  Liszt,  himself  an  adherent  of  Binding's  "  norm  "  theory 
("  Normentheorie  "),  "  without  which  a  deeper  understanding  of 
the  criminal  law  ...  is  scarcely  possible  ",^  is  certainly  not  hos- 
tile in  his  criticism.  We  may  therefore,  while  we  ourselves  abstain 
from  criticism,  give  here  as  our  own  the  criticism  of  Liszt, ^  to  which, 
perhaps,  something  could  be  added :  "  Binding's  view  is  not  a 
solution  ;  it  is  rather  a  shifting  of  the  problem.  Whence  the  State 
obtains  the  right  to  establish  rules  and  to  require  obedience,  and 
why  the  State's  right  to  obedience  is  transformed  into  punishment, 
we  are  not  told." 

Laistner.  —  If  we  correctly  comprehend  the  meaning  of  the 
abo\'e,  Laistner's  work  has  exercised  some  influence  upon  Bind- 
ing's theory,  Laistner  aims  especially  to  distinguish  sharply 
the  right  of  the  State  to  punish  and  the  duty  to  punish ;  so  that, 
while  the  right  is  based  upon  justice,  the  duty  can  be  fixed  and 
especially  can  be  limited  in  accordance  with  considerations  of 
expediency.  We  are  not  of  the  opinion  that  law  and  duty  are 
traceable  to  actually  difl'erent  origins  for  the  State  (as  is  herein- 
after shown),  Laistner's  own  attempt  to  establish  a  theory  of 
criminal  law  is  indeed  quite  extraordinary.  It  reminds  one  of 
Schopenhauer's  theory  of  right  and  wrong,  although  not  of 
Schopenhauer's  theory  of  criminal  law,  "  The  criminal,  while 
intruding  upon  another's  sphere  of  will  and  right,  is  in  iiis  own  \iew 
the  master  thereof ;  the  injured  party,  however,  accepts  only  the 
single  fact  that  each  one  belongs  in  the  realm  of  his  own  will  and 
regards  the  intruder  as  being  placed  at  his  disposal.  The  true 
punishment,  as  a  direct  consequence  of  the  crime,  does  not  consist 
in  the  execution  {i.e.,  of  the  punishment),  but  rather  in  detention 
under  the  will  of  the  party  injured  .  .  .  The  above  described 
condition  being  inevitable,  it  is  equally  true  that  the  necessity 
for  the  execution  does  not  arise  from  the  formal  character  of  the 
act,  as  is  maintained  by  the  absolute  theories;  what  we  find  is 
not  a  right,  it  is  a  privilege.  Whether  and  how  far  and  in  what 
manner  use  is  to  be  made  of  this  right,  —  these  are  no  longer 
legal  questions,  but  are  rather  practical  questions,  questicMis  of 
morality."  ^ 

5  "Das  deutsche  Reichsstrafreflit  syslematiseb  dargestellt",  p.  G. 

8  "Das  deutsche  Kcichsstrafrecht",  p.  23. 

'  Laistner,  "Das  Recht  in  der  Strafe",  pp.  196,  197. 

493 


§  102'/]        mSTOllY    OF   THE    TIIEOllIES    OF    CRIMINAL    LAW       IPaut   J I 

This  theory  can  be  illustrated  in  the  following  manner :  The 
(subjective)  right  is  a  spider's  web;  the  violator  of  this  right  con- 
ducts himself  as  a  fly  in  the  net ;  apparently  master  therein,  he 
merely  falls  into  the  power  of  the  spider,  the  owner,  lurking  in  the 
l)ackgn)und.  The  spider  does  not  need  to  suck  the  })lood  from  the 
fly,  but  he  has  the  power  so  to  do.  Whether  or  not  he  does  so 
depends  upon  considerations  of  expediency,  i.e.,  his  hunger,  etc. 
Now  if  Laistner  does  not  limit  the  "  right  "  so  exclusively  to  the 
subjective  right  of  the  individual,  and  if  Laistner  e.g.  does  and 
must  conceive,  as  also  violations  of  right,  grave  violations  of  gen- 
eral morality  or  even  the  violation  of  such  of  the  commands  and 
prohibitions  of  the  State  as  he  may  choose,  then  what  does  the 
entire  theory  mean  other  than  that  one  may  legally  do  anything 
he  pleases  with  the  criminal,  the  transgressor  of  a  rule?  The 
only  restrictions  imposed  are  those  of  expediency  and  morality. 
In  other  words,  law  is  that  which  the  omnipotent  State  desires. 
The  limitations  which  it  herein  imposes  upon  itself  concern  neither 
the  law  nor  relatively  the  philosophy  of  law.  Or,  expressed  in 
another  way,  there  is  no  philosophy  of  law.  And  indeed  there  can 
be  no  philosophy  of  law  at  all,  if  it  is  true,  as  Binding  maintains,^ 
that  the  science  of  law  is  obliged  to  build  only  upon  the  squared 
cornerstones  of  the  legal  maxims  of  the  State,  instead  of  upon  the 
waves  of  moral  opinion  which  constantly  advance  and  recede  in 
the  State  and  also  in  the  individual.  Does  not  philosophy  signify 
the  contemplation  of  things  and  of  science  in  their  relations,  one 
with  the  other? 

§  102a.  Modern  Theories  of  Criminality  outside  of  Germany.  — 
[At  this  point  the  learned  author's  historical  outline  of  criminal 
theory  comes  to  an  end.  But  at  the  very  time  of  his  writing  (1882) 
a  movement  in  another  country  was  giving  new  directions  on  a 
grand  scale  to  criminal  theory ;  and  in  the  succeeding  generation 
entirely  novel  vistas  were  broadly  opened  and  the  older  general 
theories  took  on  a  new  content  and  new  applications. 

Von  Bar's  history  ends  in  Germany  with  1880  and  in  other 
other  countries  with  1850.  But  the  story  of  the  rest  of  the  cen- 
tury has  been  fully  told  by  another  author,  in  a  treatise  which 
(with  slight  overlapping)  begins  where  Von  Bar  left  of?,  and 
traces  the  progress  of  criminal  theory  in  chapters  which  exactly 
complement  Von  Bar's  work  and  render  unnecessary  any  sup- 
plement here.  C.  Bernaldo  de  Quirös'  "  ^Modern  Theories  of 
*  "Die  Normen  und  ihre  Ueber tretung",  I,  p.  184. 
494 


Chapter  VI]  CRIMINAL   THEORIES   IN   GERMANY  [§  102a 

Criminality  "  ^  serves  the  purpose  as  if  it  had   been   composed 
therefor. 

De  Quiros  divides  his  account  under  two  heads,  Criminology, 
and  Criminal  Law  and  Penal  Science. 

I,  Criminology.  Under  this  head,  he  groups  the  various 
theories  as  follows,  in  chronological  order : 

(I).  Origins.  (1)  Occult  Sciences  (Physiognomy,  Phrenology)  : 
Lavergne,  Cams,  Casper.  (2)  Psychiatry :  Morel,  Despine, 
IMaudsley.     (3)  Statistics :  Quetelet. 

(II).  The  Three  Innovators:   Lombroso,  Ferri,  Garofalo. 

(III).  Development:  A.  Anthropological  theories:  (a)  Atavis- 
tic theories :  from  Bordier  to  Ferrero ;  (6)  Theories  of  degenera- 
tion :  from  Älagnan  to  Dallemagne ;  (c)  Pathologic  theories : 
Roncoroni,  Ottolenghi,  Perrone,  Capano,  Lewis,  Benedikt,  Inge- 
gnieros.  B.  Sociologic  theories :  (a)  Anthropo-sociologic  theo- 
ries :  Laccassagne,  Aubry,  Dubuisson ;  (h)  Social  theories :  Vac- 
caro,  Aubert,  Nordau,  Salillas;  (c)  Socialistic  theories:  Turati, 
Loria,  Colajanni. 

II.  Criminal  Law  and  Penal  Science. 

(I).  Origins:  Beccana,  Howard,  the  International  Prison 
Congresses. 

(II).  Tendencies:  (1)  Traditional:  Makarewicz.  (2)  Reform- 
ers :  Liszt,  Prins,  Van  Hamel,  Stoos,  Zucker,  Lucchini,  Ferri, 
Alimena,  Carnevale,  Manzini,  Pozzolini,  Berner.  (3)  Radicals: 
Vargha,  Dorado,  Tolstoy,  Solovieff. 

(III).  Applications:    Garraud,  Tarde,  Poletti,  Gross,  etc. 

This  imperfect  outline  of  the  progress  of  theory  described  in 
De  Quiros'  chapters  indicates  their  service  as  complementing  Von 
Bar's  history  for  the  1800  s  and  completing  the  account  to  the 
present  day.  —  Ed.] 

1  Modern  Criminal  Science  Series,  Vol.  I  (Boston,  Little,  Brown.  &  Co., 
1911 ;  published  under  the  auspices  of  the  American  Institute  of  Criminal 
Law  and  Criminology). 


495 


APPENDIX 

A  CRITIQUE  OF  THE  THEORIES,  AND  AN  EXPOSITION  OF 
THE  THEORY  OF  :M0RAL  DISAPPROBATION  (REPROBA- 
TION) 

By  C.  L.  Von  Bar  ^ 


§  103.  Defects  of  the  Absolute 
and  Relative  Theories. 
Merits  of  Hegel's  Theory. 
Morality  as  the  Basis  of 
Law. 

§  104.  Ethical  Judgment,  es- 
pecially Ethical  Disap- 
probation as  a  Necessary 
Element  of  Morality. 
Disapproval  of  an  Act 
Entails  Disapproval  of 
its  Author.  The  Possible 
and  Proper  Methods  of 
Expressing  this  Disap- 
proval. Disapproval  is 
Not  Retribution.  Va- 
rious Phases  of  Disap- 
probation as  Punishment. 
The  True  Purpose  of 
Punishment. 

§  105.  Private  Vengeance  as  an 
Expression  of  Disappro- 
bation. Punishment  a 
Right  of  Society  ratlier 
than  of  the  State.  De- 
sirability of  Prosecutions 
Initiated  by  Private 
Parties. 

§  106.  Summary.  The  Idea  of 
Disapprobation  Ex- 

pressed by  Other  Writers. 
Kinds  and  Methods  of 
Punishment. 

§  107.     The  Degree  of  Punishment. 


§  108.  What  Acts  should  be  Pun- 
ished. The  Principle  of 
Parsimony  in  Punish- 
ment. Expediency  and 
Justice  in  Punislunent. 
Criminal  Law  and  Moral- 
ity in  its  Narrower  Sense. 

§  109.  Tort  and  Crime.  Hegel. 
Hälschner.  Merkel.  Re- 
lation of  Tort  and  Crime. 
Crime  Distinguished  from 
Tort. 

§  110.  Violations  of  Police  Reg- 
ulations. The  Three 
Types.  Relation  of 
Violations  of  Police 
Regulations  to  Crime. 
General  Characteristics 
of  Violations  of  Police 
Regulations. 

§  111.  Disciplinary  Punishments. 
Lack  of  Definiteness. 
Relation  of  Discii)linary 
Punishment  to  tlu>  Public' 
Criminal  Law.  Effect  of 
Conviction  by  the  Publie 
Criminal  Law.  Differ- 
ence of  the  Public  Crim- 
inal Law  and  Disciplinary 
Punislimcnt  in  .\ttitudo 
towards  the  Offender. 
Other  Varieties  of  Dis- 
ciplinary Punishment. 

§  112.     Summary. 


1  [This  Chapter  forms  the  final   Chapter  (D)  of   the  author's  Part  II. 
But  as  it  is  not  historical  in  treatment,  but  critical,  it  is  here  placed  as  an 

497 


§  103]  APPENDIX 

§  103.  Defects  of  the  Absolute  and  Relative  Theories.  —  Con- 
sideration of  all  the  theories  of  criminal  law  heretofore  advanced 
reveals  that  none  of  either  the  absolute  or  the  relative  theories  has 
been  satisfactory.  The  absolute  theories  lack  purpose  and  also  pre- 
clude the  possibility  of  the  criminal  law  being  sufficiently  used 
to  serve  the  well-being  of  the  public  at  large.  The  relative 
theories  are  in  overwhelming  majority,"  but  these  are  unable  to 
satisfy  the  conscience  of  the  people,  because  (as  they  are  ex- 
pounded) they  renounce  the  principle  of  justice.  An  impartial 
mind  will  always  require  that  it  be  the  crime,  and  not  some  pur- 
pose disconnected  with  the  crime,  which  brings  down  the  punish- 
ment upon  the  offender. 

The  combinations  of  these  two  theories  must  also  be  charac- 
terized as  erroneous ;  for  an  absolute  foundation  of  criminal  law, 
taken  unrestrictedly,  admits  of  no  compromise  with  relative 
theories.  That  in  this  respect  such  combinations,  and  the  so- 
called  "  pragmatic  coalition,"  suffer  the  same  fault  of  inconsist- 
ency, we  have  previously  undertaken  to  demonstrate. 

Merit  of  Hegel's  Theory.  —  Of  the  previous  absolute  theories, 
there  is  only  one  which,  if  logically  carried  out  and  freed  from 
erroneous  additions  so  as  to  be  properly  understood,  is  reconcilable 
both  with  utilitarian  purposes  and  the  course  of  history.  This 
is  the  theory  of  Hegel.^  It  is,  in  addition,  entitled  to  a  certain 
presumption  of  correctness,  because  of  the  fact  that  it  has  been 
adopted  with  more  or  less  modifications  by  a  considerable  number 
of  the  most  eminent  criminalists  in  Germany.  There  remains, 
however,  in  Hegel  a  remnant  of  the  old  theory  of  retribution, 
and  punishment  cannot  be  deduced  from  the  conception  of  right 
as  he  has  attempted  it.  The  chasm  between  wrong  and  punish- 
ment cannot  be  bridged  over  by  defining  the  latter  as  a  negation 
of  wrong  and  consequently  an  assertion  of  right.  It  is  conceivable 
that  wrong  could  be  removed  from  the  world  by  some  means  other 
than  by  that  which  we  call  punishment,  e.g.  by  the  forgiveness  of 
the  wrong  or  the  doing  of  kindnesses  to  the  offender.     E.  von 

Appendix.  It  belongs  more  naturalh'  in  the  "ISIodern  Criminal  Science 
Series,"  already  cited. 

Von  Bar's  own  theory  is  on  the  whole  the  most  complete,  correct,  and 
Tvell-balanced  of  any  contributions  to  the  subject.  —  Ed.] 

2  CJ.  also  Sontag,  in  Dochoiv's  and  Von  Liszt's  "Zeitschrift  für  die 
gesammte  Rechtswissenschaft"  (1881),  pp.  486  et  seq. 

^  In  this  respect,  Hälschner,  "Das  gemeine  deutsche  Strafrecht",  p.  4. 
carried  his  point  as  against  Merkel,  "Zeitschrift  für  die  ges.  Reehtswis- 
senschaft"  (1881),  p.  555. 

498 


APPENDIX  [§  103 

Hartmann''  makes  the  apt  statement  that  forfi;iveness  corresponds 
to  the  former  moral  balance,  i.e.  that  existing  before  the  wrong, 
but  that  the  payment  of  an  evil  with  an  e\il  presses  down  further 
one  end  of  the  scales.  ^Moreover,  as  we  have  prexiously  stated, 
there  is  nothing  in  the  conception  of  right  which  requires  an  active 
prosecution  of  the  criminal.^ 

Morality  as  the  Basis  of  Law.  —  On  the  other  hand,  morality 
is  an  üctüc  principle  —  at  least  to  a  certain  extent.  The  law  can 
give  to  one  the  right  to  kill  another,  e.g.  can  give  the  master  the 
right  to  kill  the  slave.  That  which  determines  whether  or  not 
we  exercise  this  right  is  not  the  law,  but  rather  a  morality,  cor- 
rectly or  incorrectly  understood,  in  accordance  with  which  (whether 
we  will  it  or  not)  we  measure  all  our  acts  of  which  we  are  clearly 
conscious.  Now  it  is  not  the  meaning  of  an  absolute  principle 
that  a  right  is  given  to  any  one  to  punish  or  not  punish  the  criminal, 
and  certainly  not  a  right  to  be  exercised  at  pleasure.  It  is  rather 
the  meaning  that  the  right  is  also  essentially  (although  there  are 
conceivable  exceptions)  a  duty.  Consequently  the  absolute 
principle  of  criminal  law  can  be  found  only  if  we  disco\'er  a  moral 
basis  in  the  law.  The  proof  that  law  is  nothing  other  than  the 
morality  of  the  coimmuiity  which  is  conclusive  in  respect  to  the 
individual  is  not  to  be  expected  here.^  There  are,  however,  a 
great  number  of  legal  rules  which  have  no  direct  relation  with 
morality,  but  rather  rest  upon  historical  tradition  or  upon  j)uri)oses 
of  expediency.  These  also  are  of  service  to  morality,  since  they 
preserve  to  the  individual  a  sure  province  for  the  exercise  of  choice 
and  thus  of  ethical  action.^     Regulation,   therefore,  whether  it 

*  "Phänomenologie  des  sittlichen  Bewusstseins",  p.  208. 

^  The  objection  that  Hegel  gives  to  conceptions  a  reality  which  they 
do  not  possess  {Von  Liszt,  "Reichsstraf recht",  §  6,  p.  22)  is  based  upon  a 
misconception.  Hegel  does  not  think  that  the  conception  can  shut  the 
criminal  in  jail  or  bring  him  to  his  death,  but  he  thinks  that  the  power  of 
the  conception  over  men  can  have  this  effect. 

'^'Schopenhauer  even  says  ("Die  l)eiden  Orundprobleme  der  Ethik", 
p.  218)  that  legal  doctrine  is  a  part  of  morality  which  establishes  what 
are  the  acts  which  one  may  not  commit  if  lie  would  not  harm  others. 
In  "Der  Welt  als  Wille  und  Vorstellung"  (1,  p.  407),  legal  science  is  called 
"transformed  morality."  Cf.  the  meritorious  but  little-known  work 
of  Felix  Ebertij,  "Versuche  auf  dem  Gebiete  des  Xaturri'chts",  l.s.")2.  and 
the  able  work  of  Jellinek,  "Die  socialistische  Bedeutung  von  Recht,  Staat 
und  Straf(>"  (Wein,  1878),  especially  p.  42:  "The  law  is  the  ethical 
minimum." 

'  Then-fore  to  a  certain  extent  law  even  protects  unethical  conduct, 
e.g.  the  unethical  use  of  a  right  for  one's  own  advantage  and  the  dis- 
advantage of  another.  If  all  morality  w(>re  included  within  the  law, 
freedom  would  be  destroyed  and  with  it  ethical  conduct. 

499 


§  1031  APPENDIX 

take  one  form  or  another,  may  merely  as  such  hty  claim  to  ethical 
value.  It  follows  therefore  that  an  act  which  violates  the  legal 
system  is,  as  such,  more  or  less  immoral,  either  directly  or  in- 
directly. 

§  104.  Ethical  Judgment,  Especially  Ethical  Disapprobation, 
as  a  Necessary  Element  of  Morality.  —  Now  the  nature  of  ethics  is 
such  that  from  the  ethical  or  unethical  character  of  each  act  it 
forms  or  seeks  to  form  an  opinion  of  others.  In  the  language  of 
Ilerbart,  it  could  be  said  that  one  involuntarily  seeks  to  determine 
whether  the  act  furnishes  a  basis  for  approval  or  disapproval. 
However,  a  thinking  man,  who  has  learned  that  the  motives  lead- 
ing to  human  action  are  often  very  complicated  and  that  the  cir- 
cumstances under  which  these  acts  are  done  are  often  very  diffi- 
cult to  comprehend,  will  frequently  be  reticent  about  forming  this 
opinion.  The  familiar  "  Judge  not  that  ye  be  not  judged  "  of 
Christian  morality  stands  opposed  to  that  spiteful  condemnation 
of  the  faults  of  others  in  which  the  individual  egoism  loves  to 
exhibit  itself  as  a  shining  contrast  to  the  supposed  shortcomings  of 
others.  But  in  itself  there  is  nothing  immoral  in  the  forming  of 
opinions  as  to  the  actions  of  others;  it  may  even  be  considered 
an  essential  for  the  development  of  moral  character.  From  the 
acts  of  others  and  their  consequences  one  acquires  his  own  morality 
and  the  lesson  for  his  own  life.  Where  the  actions  of  another  dis- 
play an  aspect  either  strikingly  in  harmony  or  at  variance  with 
morality,  moral  judgment  takes  place  uncontrollably,  with  the 
power  of  a  natural  impulse.  The  discovery  of  some  especially 
grave  crime,  e.g.  an  attempt  to  take  the  life  of  a  highly  revered 
ruler,  causes  this  judgment  to  come  into  being  with  the  irresistible 
force  of  a  natural  instinct ;  no  hairsplitting  distinctions  ^  are  able 

1  Binding,  "Die  Normen  und  ilire  Uebertretung",  I,  p.  184,  says  that 
we  may  not  derive  law  from  morality  and  as  proof  of  this  he  argues,  first, 
that  in  the  province  of  morality  an  unconditionally  binding  rule  cannot 
exist  —  "unquestioning  obedience  to  the  so-called  moral  views  of  public 
opinion  represents  a  very  low  degree  of  moral  value"  —  since  the  ethical 
character  of  an  act  consists  in  its  harmony  with  the  conscience  of  its 
author ;  and,  secondly,  that  the  rules  of  morality  are  too  changeable.  To 
which  the  answer  may  be  made  that  no  intelligent  man  can  confound 
public  opinion,  i.e.  in  Binding's  sense,  "the  fashionable  opinion  of  the 
great  majority"  with  established  morality,  e.g.  Christian  morality  as  it  is 
generally  recognized.  Such  a  shifting  of  the  expression  and  the  idea  has 
no  placeln  scientific  investigation,  and  is  a  questionable  method  of  polemic. 
Taking  up  the  last  point,  it  is  not  true  that  moral  opinions  change  s;) 
rapidly,  "go  up  and  down  as  waves",  as  Binding  believes.  On  the  con- 
trary," they  are  far  more  stable  than  principles  of  law.  The  taking  of 
excessive  advantage  of  another's  necessity,  for  example,  has  been  long 
considered  as  morally  reprehensible,   while  as  is  well   known   the  law 

500 


APPENDIX  [§  104 

to  limit  or  deprive  the  individual  or  the  public  at  larjije  of  this  moral 
judgment.  Diihring  and  Von  Ilartmann  recognize  this  in  their 
theory  of  resentment,  or  moral  antipathy,  but  they  pay  too  much 
attention  to  the  egoistic  aspect  of  the  c^uestion.  In  natural  man 
this  moral  judgment  is  most  strongly  manifested  if  he  himself 
be  the  party  suffering  from  the  immoral  act.  But  this  restriction 
of  the  idea  to  one's  own  injury  is  not  necessary.  On  the  contrary, 
where  man  is  changed  from  his  natural  state  (i.e.  of  isolation)  into 
that  of  membership  in  a  certain  association,  where  he  becomes  a 
Z(oov  ttoXltikov,  this  judgment,  although  with  less  spontaneity,  is 
likewise  provoked  and  occasioned  by  the  malicious  injury  of  (others. 

Disapproval  of  an  Act  Entails  Disapproval  of  its  Author.  —  This 
diapproving  judgment  prevails  j)rimarily  against  the  act.  But 
of  necessity  it  extends  also  to  its  author  ;  for  an  act  cannot  be  con- 
templated independently  of  its  author.  If  the  author  is  not  known 
individually,  there  appears  always  in  the  act,  although  in  hazy 
and  indistinct  outlines,  a  mental  jiicture  of  the  author.  Whether 
we  may  start  from  the  acceptance  of  extensive  freedom  in  human 
action,  or  from  the  assumption  of  complete  determinism  (the 
"  operari  sequitur  esse  "  of  the  Scholastics  and  Schopenhauer), 
the  deed  appears  as  the  product  of  the  nature  or  character  of  its 
author.  In  our  disapprobation  of  the  act  we  also  always  express 
our  disapproval  of  the  personality  of  its  author.- 

The  Possible  and  Proper  Methods  of  Expressing  this  Disapproval. 
—  But  this  disapprobation  in  the  abstract  ^  does  not  reveal  the 

relative  to  usury  has  undergone  many  changes.  Binding  even  confuses 
the  moral  rule  with  the  compreliension  l\v  the  same  of  the  individual  case. 
This  inclusion  of  the  act  with  tliose  coming  under  the  ruk'  is  frequently 
more  difficult  and  is  subject  to  more  changes  in  "fashionable  opioion" 
than  in  principles  of  law.     Why  this  is  so,  appears  later. 

But  as  far  as  the  sovereignty  of  the  individual  conscience  is  concerned, 
a  thing  disputed  by  Binding,  this  reproduction  of  Fichti''s  theory  of 
morality  is  untenable  according  to  the  modern  ri>searches.  The  conscience 
of  the  individual  is  a  product  of  history  and  of  the  morality  of  the  entire 
nation.  ('/.  //ej/c/,  "Philosophic  des  Ii(H'hts"  (3d  Ed.),  pp.  192  cl  sa/.; 
Lolze,  "Mikrokosmos"  {'.kl  Ed.),  11,  pp.  308  el  seq.;  Alnux,  "lieber  die 
Wandlungen  des  Moral  im  Menschengeschlechte"  ("Vortrag",  Basel, 
1879);  Baumann,  "Handbuch  der  Moral  und  Abriss  der  Rechtsphiloso- 
phie" (1879) ;  Von  Ihering  in  Schmoller'' s  "Jahrbuch  für  Gesetzgebung", 
etc.  (N.  S.  Vol.  6,  1882),  pp.  1  el  seq.;  and  especially  in  contradiction  to 
Binding,  see  Jellinek,  p.  123. 

'  This  answers  the  ol>jection  mad(>  by  Hugo  Meyer  to  the  reproba- 
tion theory  that  disappro)>ation  of  the  person  of  tlu'  author  of  the  act  yet 
remains.  On  the  other  hand,  that  puiiisiiment  is  primarily  applied 
against  the  act  and  not  against  its  author  lias  been  maintained  ever  since 
antiquity  by  many  of  the  most  profound  thinkers. 

^  Seber,  "Gründe  und  Zwecke  d(T  Strafe"  (187(5),  p.  11,  regards  the 
principle  of  disapprobation  as  not  sufficient.     Although  it  can  be  conceded 

501 


§  104]  APPENDIX 

maniitT  of  its  concrete  expression.  It  could  possibly  confine  itself 
to  the  mere  mental  processes  of  the  one  clisapprovän^ ;  or  on  the 
other  hand  it  could  manifest  itself  in  a  destruction  of  the  author, 
which  except  for  this  would  be  without  purpose.  For  the  de- 
struction of  an  object  without  ulterior  jjurpose  is  of  necessity  the 
strongest  expression  that  there  is  nothing  for  which  it  should 
exist,  —  that  it  is  of  no  moment,  and  is  thus  the  strongest  expres- 
sion of  absolute  disapproval.  Reserving  the  various  methods  for 
the  expression  of  this  disapproval,  we  will  seek  first  to  establish 
the  extent  of  the  justification  of  this  possibility  of  expression.'* 

The  more  doubt  involved  in  the  moral  judgment  of  an  act, 
the  more  reserved  and  the  less  manifest  must  be  its  disapproval. 
But,  vice  versa,  in  the  case  of  obviously  grave  violations  of  morality, 
wherever  there  exists  a  moral  community  this  judgment  neces- 
sarily becomes  a  public  one.  For  (as  even  Kant  believes),  morality 
is  not  a  thing  prepared  for  all  times  and  exclusive  of  everything 
else ;  it  is  a  product  of  the  history  of  humanity  and  thus  a  prod- 
uct of  the  community.  The  moral  judgment  of  the  individual 
is  founded  upon  tradition,  upon  the  moral  judgment  of  others. 
This  necessarily  presupposes  a  certain  communication  of  the  moral 
judgment,  without  which  tradition  would  be  impossible  —  in 
other  words,  it  presupposes  a  certain  publicity  of  the  moral  judg- 
ment. Here  again  logic  is  in  accord  with  the  actual  facts.  In  the 
case  of  grave  violations  of  morality,  in  the  case  of  serious  crimes, 
public  disapproval,  as  already  remarked,  manifests  itself  irre- 
sistibly. Public  disapproval  therefore,  in  a  manner  more  or  less 
formal  or  informal,  is  within  certain  limits  and  in  certain  cases 

that  the  inviolability  of  certain  fundamental  maxims  of  morality  must  be 
continually  emphasized,  he  believes  proof  was  yet  needed  that  this  em- 
phasis can  be  made  only  by  punishment.  However,  this  proof  is  lacking 
in  Seber's  own  arguments,  which  (p.  19)  amount  to  a  paraphrase  of  my 
own,  yet  {cf.  especially  p.  29)  with  the  elements  of  uncertainty  that  -^vitii 
the  fundamental  principle  of  criminal  law  — -  emphasis  of  certain  funda- 
mental moral  principles  —  there  are  coordinated  the  principles  of  deter- 
rence and  reformation.  The  result  is  that  in  reality  the  asserted  prin- 
ciple loses  its  true  meaning  and  can  with  difficulty  be  distinguished  from 
a  moderate  principle  of  detei-rence.  The  proof  desired  by  Seber  is  already 
furnished,  if  it  is  proven  that  in  general  punishment  is  requisite.  There 
is  no  need  to  show  that  ijunishment  is  absolutely  necessary  in  each  in- 
dividual case,  since  the  law  must  as  a  rule  ignore  the  special  features  of  the 
individual  case.  And  this  is  certain,  that  if  criminal  justice  should  at  the 
present  time  suspend  its  functions,  morality  would  thereby  receive  its 
deathblow. 

''  According  to  our  view,  that  which  we  are  accustomed  to  call  punish- 
ment {e.g.  deprivation  of  freedom  or  property)  is  only  the  amount  of 
■punishment.  Cf.  the  derivation  and  earlier  meaning  of  the  word  "Strafe" 
("punishment"). 

502 


APPENDIX  (§  104 

the  necessary  attribute  of  morality ;  and  since  without  morahty 
(as  will  be  at  once  conceded),  a  human  community  could  not 
exist  and  the  progress  of  humanity  would  be  altoj^ether  impossible, 
the  public  disapproval  of  certain  acts  contrary  to  morality  is  an 
unconditional  right. 

Every  disapprobation  of  an  act,  or  (what  amounts  to  the  same 
thing)  of  its  author,  has  for  the  latter  at  least  the  consequence  that 
he  is  lowered  in  the  moral  estimation  of  those  who  disapprove. 
One  cannot  treat  him  entirely  as  if  he  had  not  given  reason  for 
disapprobation.  If  it  were  desired  to  do  this,  then  the  disappro- 
bation should  be  removed  by  some  "  factum  contrarium."  If 
disapproval  of  an  evil  act  did  not  find  some  real  expression  (this 
may  consist  merely  in  the  withdrawal  of  the  confidence  previouslx- 
reposed  in  its  author),  complete  forgiveness  applied  universally 
would  abolish  morality ;  for  this  would  render  necessary  the  as- 
sumption that  an  act  contrary  to  morality  was  not  prejudicial 
to  the  moral  standing  of  its  author.  If  the  precepts  of  the  Founder 
of  Christianity  commend  something  dift'erent,  it  must  be  re- 
membered that  in  part  they  are  expressed  in  the  excessi\'cly  em- 
phatic manner  characteristic  of  oral  statements.  When  directed 
towards  an  individual  case,  this  stronger  method  of  statement 
can  seem  justifiable;  and  these  precepts  were  primarily  intended 
to  govern  the  private  intercourse  of  a  small  circle  who  called  them- 
selves the  "  Children  of  God."  The  application  of  the  moral 
principles  of  Christianity  to  the  Christian  State  was  left  to  the 
future.  But  even  in  case  of  the  most  complete  forgiveness  (for- 
giveness in  the  sense  that  not  the  slightest  intentional  evil  accrue 
to  the  wrongdoer  as  the  result  of  his  act),  yet  there  always  remains 
a  certain  shadow  as  a  result  of  the  evil  deed,  which  entails  for  him  a 
disadvantage  if  he  lay  claim  to  full  fellowship  with  us.  This  is 
something  we  cannot  avoid,  even  if  we  so  desire. 

Now  if  the  \iolation  of  morality  is  a  very  gra\e  one,  so  that  the 
wrongdoer  assumes  the  role  of  an  antagonist  to  that  moral  system 
which  deals  out  rules  of  conduct  to  individuals  as  conditions  of 
their  existence  and  further  development,  it  comes  to  pass  that  the 
moral  community  regards  the  wrongdoer  as  no  longer  a  i)art  of 
itself.  Every  association  has  the  right  of  expulsion  as  against  the 
individual  who  does  not  observe  the  rules  which  it  regards  as  the 
conditions  of  its  existence.  Christ  himself  said  in  such  a  case : 
"  Let  him  be  unto  thee  as  a  heathen  and  a  publican."  ''  Since 
6  N.  T.,  Mattlu'w,  xviii,  17. 
503 


§  104]  APPENDIX 

in  the  early  periods  of  the  human  race,  law  and  morality  are  the 
same,  it  is  quite  logical  that  a  serious  violation  of  law,  of  morality, 
brings  upon  the  wrongdoer  exclusion  from  the  legal  association, 
i.e.  outlawry.  For  this  reason  (as  Fichte  has  correctly  observed), 
everwhere  the  original  punishment  was  outlawry.  This  outlawry, 
as  was  naturally  the  case  in  the  rather  loose  association  of  the  old 
German  "  Edelhöfe  "  and  "  Freihöfe,"  might  affect  only  the  party 
injured,  who  thereby  obtained  an  unlimited  right  of  revenge. 
It  might,  as  was  the  case  in  the  city  of  Rome  with  its  closely 
crowded  population,  entail  an  immediate  outlawry  in  respect  to 
all  (as  "  sacer  "). 

Accordingly  every  expression  of  disapproval,  even  where  it  in- 
volves complete  destruction  of  the  offender,  or  any  other  conceiv- 
able injury  to  him  as  an  expression  of  this  disapproval,^  is  justice 
in  respect  to  the  offender:  "Jus  Isesi  infinitum."  The  latter 
cannot  complain,  since  he  it  was  who  first  severed  the  bonds  of 
morality  and  law.  This  is  the  true  and  correct  meaning  of  the 
principle  (which  Hegel  indeed  did  not  fully  comprehend)  that 
the  method  and  measure  of  punishment  belong  to  the  realm  of 
chance.  Hegel  herein  overlooked  the  fact  that  history  also  gives 
prominence  to  a  certain  principle  of  justice.  A  remnant  of 
the  original  conception  always  continued  to  exist.  Even  the 
strongest  adherent  of  the  principle  of  justice  in  its  ordinary  sense, 
which  would  measure  the  justice  of  punishment  in  accordance  with 
its  method  and  amount,  cannot  to-day  fail  to  perceive  that  to  a 
certain  extent  the  criminal  and  his  sphere  of  rights  are  placed  at  the 
disposition  of  society.  Otherwise  it  would  be .  impossible  to  in 
any  way  account  for  the  purpose  of  reforming  the  criminal,  etc. 
Any  recognition  of  a  relative  purpose  in  punishment  necessarily 
carries  with  it  the  principle  that  the  criminal  may  to  a  certain 
extent  be  placed  at  the  discretionary  disposition  of  society. 

Disapproval  is  Not  Retribution.  —  The  history  of  criminal 
law    exemplifies    the    foregoing    idea    in    its    course  of  gradual 

«  Cf.  also  C.  L.  Voti  H aller,  "Restauration  der  Staatswissenschaften", 
II,  e.  34.  On  this  point  I  modify  my  earlier  view.  I  had  found  a  justi- 
fication for  the  \'iolation  of  the  sphere  of  rights  of  the  individual  in  this, 
viz. :  that  in  other  cases  {e.g.  in  war)  the  indiAidual  may  be  sacrificed  for 
the  sake  of  the  communitj^  ("Grundlagen  des  Strafrechts",  p.  76).  But 
such  cases  are  different.  The  individual  and  his  property  may  be  sac- 
rificed only  in  so  far  as  voluntary  acquiescence  would  be  of  service.  Punish- 
ment is  essentially  coercion.  This  applies  especially  against  the  attempt 
at  a  justification  of  punishment  in  Ed.  Hertz,  "Das  Unrecht  und  seine 
Formen"  (1880),  p.  48. 

50i 


APPENDIX  f§  104 

advancement.^  In  the  beginning,  vengeance  knew  of  no  restraint. 
Retaliation  in  kind  ("lex  talionis")  furnished  something  akin  to  a 
fixing  of  the  amount  for  certain  cases  (but  by  no  means  for  ail).  It 
was  a  very  imperfect  measure,  but  nevertheless  a  measure  which  is 
characterized  by  a  certain  ideal  symmetry.  But,  as  history  shows, 
this  is  not  a  fundamental  principle,  but  rather  a  principle  limiting 
the  application  of  the  dominant  principle  of  destruction.  A  readily 
conceivable  change  has  been  able  to  raise  the  idea  of  retaliation  to 
an  independent  principle.  It  is  absolutely  impossible  for  any  one 
who  has  given  close  consideration  to  the  history  of  criminal  law  even 
to  speak  still  of  the  possibility  of  a  principle  of  retaliation.  There 
is  sense  in  saying  that  evil  things  and  persons  must  be  destroyed. 
It  is  possible  only  for  one  who  considers  himself  an  administrator 
of  divine  justice  to  say :  "  I  do  an  injury,  —  because  evil  must 
be  requited  with  evil."  This  idea  is  of  later  origin,  and  was 
long  ago  proven  to  be  inapplicable  for  the  criminal  law  of  the 
State. 

It  is  only  if  one  cease  to  regard  retaliation  as  the  causing  of  evil 
or  sorrow,  and  regard  it  merely  as  tending  to  lessen  progress  and 
hinder  development,  that  it  has  a  rational  meaning,  and  further- 
more a  meaning  in  harmony  with  the  idea  of  dis'approbation.  If 
to  live  and  act  morally  is  in  accordance  with  the  general  rule  of 
existence,  then  the  opposite  must  impede  and  hinder  the  author 
of  the  immoral  act,^  just  as  he  who  lives  contrary  to  the  laws  of 
health  suffers  injury  for  so  doing.  The  moral  system  abandons 
the  evil  doer  or,  what  amounts  to  the  same  thing,  it  turns  against 
him ;  but  to  find  its  principle  in  causing  pain  to  the  evil  doer,  is 
logically  impossible  and  is  the  opposite  of  morality. 

The  more  firmly  the  moral  system  is  established,  the  less  vigorous 
need  be  its  expression  of  diapproval  —  for  in  many  respects  this  is 
supplanted  by  the  natural   reaction  of  the  moral  system.      If 

7  Ulrici,  "Gott  und  der  Mensch",  II,  1  (1873),  p.  30:?,  iiltliouRh  he 
acknowledges  that  the  one  element  common  to  all  punishments  is  dis- 
approval, rejects  mv  argument  because  pure  disapproval,  historically 
speaking,  did  not  arise  until  relatively  later  and  public  ijumshmcnt  was 
chiefly  introduced  for  the  suppression  of  private  vengeance.  The  first 
point^  however,  merely  corresp(mds  to  the  law  of  development  ;  and  as 
far  as  the  second  point  is  concerned,  it  may  well  be  asked  whetluT  ven- 
geance also  does  not  contain  tiie  element  of  disapprobation.  I  Irici 
would  regard  vengeance  merely  as  retrilnition  and  al)sohite!y  repudiates 
both.  Then  punishment  inflicted  by  tlie  Slate  would  he  a  eomi>lftely 
new  principle  not  in  harmony  with  history,  a  thing  which  is  historically 
false. 

*  This  opinion  is  expressed  by  Merkel.     See  ante,  §  99. 


505 


\ 


§  1041  APPENDIX 

the  thief  has  (Hfhculty  in  fin(Hn^'  some  one  to  receive  the  stolen 
goods,  because  general  honesty  sul)jects  the  title  of  a  v'endor  to  a 
scrupulous  test,  theft  hereby  comes  to  be  something  which  in 
most  cases  does  not  i)rofit  the  thief  but  is  only  to  his  detriment.  If 
to  the  cheat,  the  swindler  and  the  conscienceless  speculator,  the 
doors  of  the  homes  of  honorable  people  (who  form  by  far  the  great 
majority)  are  closed,  then  in  many  cases  the  expression  of  formal 
disapproval  is  perhaps  superfluous.  Consequently  punishments 
become  milder  as  civilization  increases,^  i.e.  a  civilization  which 
signifies  an  advance  not  only  in  knowledge  and  refinement  of 
enjoyment  but  also  in  morality.  It  is  possible  that  in  an  ideal 
state  of  society  the  individual  criminal  might  be  left  simply  to 
the  consequences  of  his  own  crime ;  or  there  might  be  applied  the 
principle :  Overcome  evil  not  with  evil  but  with  good.  Thus 
punishment,  regarded  as  disapprobation,  may  be  reconciled  with 
Christianity,  but  regarded  as  retribution  through  human  agencies, 
it  is  fundamentally  the  opposite  of  Christianity.  For  (as  even 
Kant  has  fairly  and  candidly  shown)  the  principle  of  retribution 
never  permits  forgiveness. 

Various  Phases  of  Disapprobation  as  Punishment.  —  In  order 
that  the  disapproval  of  an  act  (and  consequently  of  its  author) 
may  have  that  ideal  eft'ect  of  confirming  the  morality  of  those  dis- 
approving, it  is  necessary  that  the  determination  of  the  act  and 
of  its  author  be  as  exact  as  possible.  Therefore  a  punishment 
inflicted  upon  a  man  innocent  (or  generally  believed  to  be  innocent) 
does  not  have  the  moral  eft'ect  of  punishment.  Fear  can  be  spread 
through  the  venting  of  rage  against  innocent  people.  But  where 
a  people  is  not  completely  enervated  the  ultimate  effect  of  this 
fear  will  be  directed  against  its  author.  A  just  punishment, 
however,  strengthens  the  position  of  the  legal  system. 

Moreover,  it  is  in  harmony  with  the  character  of  punishment  as 
disapprobation  that  in  countries  where  there  is  a  high  degree  of 
culture  and  refinement  of  feeling  the  trial  and  condemnation  of 
the  criminal  constitute  a  part,  and  often  a  very  important  part, 

^  There  is  even  recognized  in  the  German  Criminal  Code  a  punish- 
ment (frequently  used  in  England)  which  consists  entirely  in  public  dis- 
approval, —  reprimand.  Hugo  INIeyer,  §  5,  maintains  that  the  essence 
of  reprimand  is  not  disapproval  of  the  act  but  rather  of  its  author  (i.e. 
thus  a  mild  form  of  suffering).  However,  this  assertion  is  in  itself  a 
"petitio  principii",  and  if  reprimand  is  not  a  "humiliation  of  the  offender" 
only  secondarily,  then  why  are  all  the  special  forms  of  humiliation  therein 
eliminated?  Why  is  the  pillory  not  to-day  a  desirable  form  of  punish- 
ment ? 

506 


APPENDIX  [§  104 

of  the  punishment.^"  If  punishment  were  necessarily  an  external 
evil,  there  would  be  no  explanation  of  the  fact  that  in  concrete 
cases  the  punishment  may  consist  merely  of  a  mone\'  fine  or  a 
few  weeks'  imprisonment. 

The  character  of  punishment,  regarded  primarily  as  disapproha- 
tion  of  the  criminal  act  (and  only  secondarily  as  disapprobation 
of  its  author),  makes  it  necessary  that  the  expression  of  disappro- 
bation be  directly  attached  to  the  act  itself  as  portrayed  by  the 
trial,  —  in  other  words,  makes  it  necessary  that  the  judicial 
sentence,  which  is  nothing  other  than  the  fixing  of  the  act  in  the 
minds  of  the  public,  substantially  specify  the  punishment.  It  is 
contrary  to  the  nature  of  criminal  law  to  attempt  in  general  to 
determine  the  punishment  later,  after  observation  of  the  character 
of  the  convict.  We  would  say  nothing  here  of  the  hypocrisy  of 
prisoners,  their  unmanly  actions,  and  their  deceit  of  the  prison 
officials.  These  are  unfortunate  conditions  to  which  rise  is  given 
by  the  foolish  modern  moxement  (so  totally  at  variance  with 
history)  to  eliminate  from  the  judicial  sentence  the  fixing  of  the 
amount  of  the  punishment,  and  to  allow  the  duration  of  the  punish- 
ment to  be  fixed  later,  after  observation  in  the  prison,  or  to  remain 
for  a  time  undetermined.  As  previously  stated,  the  sentence  of 
the  criminal  court  could  contain  an  abstract  significance,  without 
having  an  actual  result  of  a  penal  nature ;  but  in  this  case  tlie 
actual  result  of  the  evil  act  should  be  affixed  i)ublicly  and  be  of 
general  application,  —  at  least  it  should  be  fixed  independently  of 
anything  else.  The  judicial  sentence  loses  its  influence  upon  the 
mass  of  the  people  when  the  actual  result  of  the  act  is  connected 
with  something  else,  i.e.  when  it  depends  upon  the  discretion  of 
prison  officials  which  is  not  manifest  to  the  public  and  which  can- 
not be  publicly  verified.  The  individual  criminal  may  be  reformed, 
to  the  heart's  desire,  but  among  the  masses  of  the  people  frime  will 
continue  to  flourish.  However,  if  the  punishment  were  actually 
retribution  of  evil,  i.e.  of  the  wickedness  of  the  criminal,  then  no 
objection  could  be  raised  to  first  making  a  long  observation  of  this 
wickedness,  since  the  deed  of  the  criminal  does  not  afford  an  ade- 
quate criterion  for  its  accurate  measurement. 

Furthermore,  the  punishment  of  disapprobation  can  never  iu' 
supplanted  by  suffering  which  comes  upon  the  criminal  as  a  matter 
of  chance,  even  if  this  is  a  result  of  the  crime  and  rcNcais  (as  they 

'«  This  opinion  expressed   by  me  in  the  "Grundhni«'  (Us  Strafrechts" 
p.  4,  had  been  advanced  by  Heinzc,  p.  32ü,  as  slated  abo\e. 

507 


§  104]  APPENDIX 

say)  the  "  hand  of  God."  If  a  thief  })reaking  into  a  house  falls 
from  a  ladder  and  as  a  result  of  the  fall  heeomes  a  eripple  for  life, 
we  would  not  for  this  reason  spare  him  from  punishment  any  more 
than  we  would  the  highwayman  who  lost  an  arm  or  his  sight  as  a 
result  of  the  vigorous  defense  of  his  opponent.  If  temporal 
punishment  were  merely  the  representative  of  divine  punishment, 
then  in  sueh  cases  it  would  be  presumptuous  to  desire  further 
punishment.  If  it  were  the  retribution  of  evil  with  evil,  then  in 
such  cases,  to  punisli  would  be  senseless. 

The  True  Purposes  of  Punishment.  —  The  essential  matter  is 
active  disapprovüJ  rather  than  the  pain  of  the  criminal.  Therefore, 
whether  or  not  the  criminal  in  the  individual  case  finds  the  punish- 
ment an  evil  makes  no  difference.  He  may  even  regard  it  as  a 
benefit,  —  as  e.g.  perhaps  in  these  times  a  criminal,  who  is  not  com- 
pletely pernicious,  regards  with  favor  the  prison  which  keeps  him 
from  further  wrongdoing  and  furnishes  him  instruction.  We 
should  not  for  this  reason  change  the  punishment,  so  as  to  cause 
him  suffering.  According  to  Plato's  ideal  conception,  the  offender 
should  ahvays  regard  the  punishment  as  a  benefit.  If  pain  were 
the  essential  element,  why  should  w^e  to-day  be  so  violently  op- 
posed to  torment  and  torture  of  convicts  ?  This  would  be  nothing 
other  than  a  mistaken  feeling  of  humanity,  and  there  would  still 
arise  the  question  whether  a  short  punishment  entailing  se\'ere 
physical  suffering  or  even  mutilation,  where  this  does  not  afTect 
the  capacity  to  earn  a  living  {e.g.  cutting  off  the  ears)  is  not  pref- 
erable to  imprisonment  lasting  for  years.  The  fact  that  we  find 
nothing  repulsive  in  the  physical  destruction  of  the  criminal 
in  capital  punishment,  but  are  offended  with  torture  and  suffering 
commanded  for  any  other  purposes,  liks  as  a  matter  of  fact  its 
deep  reason,  which  none  of  the  previous  criminal  theories  has 
explained. 

However,  the  treatment  of  the  offender  must  always  be  expres- 
sive of  disapproval ;  and  so  far,  but  only  so  far,  it  is  proper  that 
the  punishment  should  contain  a  disadvantage  for  the  condemned. 
Criminals  should  not  constitute  a  favored  and  pampered  class 
(this  is  a  consideration  which  obviously  opposes  the  extreme 
deductions  of  the  theory  of  reformation),  although  other  praise- 
worthy purposes  might  be  better  attained  through  such  good 
treatment.  The  distinction  must  always  remain,  that  as  a 
general  thing  it  is  preferable  not  to  be  punished.  A  penal 
institution   must   never   assume   the    character    of    an    institu- 

508 


APPENDIX  [§  lOÖ 

tion  for  instruction.  However  great  may  be  the  attention  given 
to  purposes  of  reformation,  and  consequently  to  the  individual 
criminal,  this  attention  is  only  a  secondary  one.  The  primary 
element  is  attention  to  the  necessity  of  public  disapproval  (or  if 
one  prefers  so  to  term  it,  repression).  Thus  Krohne '^  states, 
in  regard  to  the  last  international  Congress  for  the  Improvement  of 
Prisons  and  the  tendencies  there  observed  :  "  With  all  the  com- 
passion which  is  aroused  by  every  human  failure,  be  it  moral, 
mental  or  physical,  the  men  who  to-day  are  concerned  in  prison 
reform  are  primarily  governed  by  the  opinion  that  the  vital  ques- 
tion is  the  defense  of  society." 

As  Hälschner  and  others  have  correctly  stated,  punishment  is 
primarily  to  be  conceived  as  a  suffering  of  the  criminal,  —  as 
coercion  brought  to  bear  upon  him,  to  the  extent  that  the  criminal 
is  involuntarily  subjected  thereto,  but  not  in  the  sense  that  he 
should  be  tortured.  In  disapprobation  there  is  an  active  manifes- 
tation of  the  one  disapproving.  Punishment  cannot,  as  Heinze 
woukl  have  it,^-  be  conceived  chiefly  as  a  paymejit  by  the  criminal 
to  the  community.  If  this  were  so,  then  voluntary  acceptance  of 
the  external  method  of  punishment  fixed  by  the  State  for  the  case 
in  question  would  be  the  most  perfect  penal  atonement.  The  sui- 
cide of  a  person  condemned  to  death,  instead  of  being  prevented  as 
is  now  done,  would  necessarily  be  encouraged.  Only  when  the 
criminal  regards  himself  as  a  means  for  furthering  the  purposes  of 
humanity,  and  only  when  he  has  learned  to  regard  the  ])unishinent 
as  rational,  can  the  punishment  be  conceived  as  a  payment.  It  is 
only  in  this  sense  that  I  have  previously  expressed  the  opinion 
that  the  criminal  must  undergo  retribution.  It  is  with  this  just  as 
with  reformation ;  the  ideal  punishment  will  reform  in  fact  the 
offender,  but  nevertheless  the  chief  purpose  of  punishment  is  not 
reformation.^'^ 

§  105.  Private  Vengeance  as  an  Expression  of  Disapprobation.  — 
We  have  already  remarked  that  the  earliest  punishment  consisted 
of  a  dissolution  of  the  legal  tie  existing  between  the  injured  party 
(or  as  the  case  may  be,  the  community)  and  the  criminal.     Accord- 

"  Krohne,  "Der  gop:onwartif;(>  Stand  dvr  Geftingnisswissenschaft"  in 
Dochnw's  and  LiszCs  "Zoitschrift"  (1),  ISSl,  p.  5S. 

1-  Heinze,  pp.  322  ct  aeq. 

"  For  the  reasons  mentioned,  voluntary  submission  to  a  punishment 
inflicted  by  the  State  is  not  suRieient.  Pulilie  disappro\al  cannot  arrive 
at  expression  without  a  judgment.  Therefore,  only  a  very  subordinate 
importance  can  be  assumed  by  waiver  in  criininal  proccchin». 

509 


§  105]  APPENDIX 

ingly,  if  every  punishment  substituted  for  this  dissolution  were  a 
benefit,  or  as  a  matter  of  history  the  earhest  right  afforded  the 
criminal,  then  the  statement  of  Fichte  in  regard  to  the  citizen's 
important  right  to  be  punished  would  not  be  so  paradoxical  as  it 
seems.  The  development  of  punishment  by  compositions,  which 
we  are  able  to  trace  in  Germanic  law,  confirms  this  absolutely. 
There  is  an  apparent  contradiction  in  the  fact  that  later,  and  es- 
pecially to-day,  the  criminal  may  not  escape  punishment  by  going 
into  exile.  But  exile  later  and  also  to-day  has  no  longer  the  sig- 
nificance of  the  old  "  Rechtlosigkeit  "  (deprivation  of  all  rights, 
outlawry)  or  (to  use  the  language  of  the  old  Xorse  or  Germanic 
law)  "  Friedlosigkeit  "  (being  without  the  "  peace  ").  This  was 
an  entirely  difi^erent  matter. 

Disapprobation  as  a  punishment,  when  inflicted  by  the  indi- 
vidual, lacks  not  only  (as  is  obvious)  a  definite  objective  amount, 
but  it  also  lacks  a  general  recognition  that  the  occasion  of  its  in- 
fliction is  a  just  one.  Such  a  punishment  is  often  very  hard  to 
distinguish  from  a  mere  unlawful  attack ;  and  it  is  very  easy  for 
the  criminal,  in  order  to  avail  himself  of  the  assistance  of  others 
in  his  own  defense,  to  set  up  the  pretext  that  the  attack  upon  him 
is  unlawful.  Thus  private  vengeance  becomes  a  standing  feud 
between  various  families,  and  the  community  or  the  king  finds  it 
well  to  intervene,  and  out  of  this  intervention  there  later  arises 
the  taking  over  of  this  private  vengeance  by  the  State.  This  is 
furthered  by  the  increasing  realization  that  the  legal  security  or 
insecurity  of  one  individual  involves  that  of  the  others.  Ven- 
geance becomes  punishment.  From  disapproval  subjectively 
manifested  there  arises  one  of  more  general  recognition.  It 
becomes  liberated  from  its  egoistic  character,  —  a  liberation  that 
is  not  merely  accidental  but  which  is  in  accord  with  the  laws  of  de- 
velopment.^ 

Punishment  a  Right  of  Society  Rather  than  of  the  State.  — 
Upon  this  transfer  of  the  criminal  law  to  the  State,  there  arises, 
from  the  right  to  punish,  a  duty.  That  which  the  individual 
has  heretofore  possessed  as  a  right  is  taken  over  by  the  State,  as 
it  were,  with  trustworthy  hands  —  for  careful  administration  and 
not  for  arbitrary  exercise  or  neglect.  In  the  hands  of  the  State, 
this  right  becomes  a  duty  —  a  duty  not  only  of  the  State  but  also 

1  This  process  of  transfer  is  excellently  described  and  explained  by 
C.  L.  Von  Haller,  "Restauration  des  Staatswissensehaften",  II,  pp.  241 
et  seq.  (c.  34). 

510 


APPENDIX  [§  1U.3 

of  society.  It  necessarily  follows  that  the  State  cannot  fore^'o 
punishment  at  its  discretion,  as  can  the  individual.-  As  far  as 
it  is  able,  the  State  must  prosecute  actively.  It  is  in  the  same 
position  as  the  individual  whom  custom  will  not  allow  to  permit 
the  murderer  of  his  kinsman  to  escape  if  he  has  him  in  his  i)o\vcr  or 
to  leave  to  chance  or  a  third  party  the  work  of  venj^eanc»'.  Ivxilc 
is  not  a  right,'"^  but  a  mere  "  de  facto  "  possibility  for  the  iudixidual. 
With  the  passing  from  memory  of  that  original  condition  in  whicji 
criminal  law  was  a  right  of  the  indixidual  or  possibly  of  all,  the 
State  becomes  less  able  to  consider  or  assume  that  the  mere  pri\i- 
lege  of  harming  the  criminal  entails  for  the  latter  a  real  conse- 
quence, even  apart  from  the  fact  that  this  inxolves  a  possibility 
of  degenerating  into  the  old  barbarous  custom  of  \cngcance. 

Desirability  of  Prosecutions  Initiated  by  Private  Parties.  —  There 
always  remains,  however,  a  certain  recollection  of  the  fact  that 
criminal  justice  was  merely  transferred'^  to  the  State,  and  did  not 
belong  to  it  originally.  In  a  case  in  which  popular  opinion  regards 
a  private  person  as  primarily  concerned  in  the  punishment  and  the 
public  right  of  the  State  as  only  secondarily  concerned,  a  pardon 
or  dismissal  of  the  case  is  considered  a  wrong;  e.g.  in  case  of  an 
insult,  if  some  satisfaction  has  not  been  privately  rendered  the 
injured  party  or  his  forgiveness  or  his  consent  to  the  pardon  has 
hot  been  obtained.  It  is  also  well  for  the  State  authorities  to 
bear  in  mind  that  the  criminal  law,  although  in  a  rather  crude  form, 
is  older  than  the  State  itself,  and  that  it  must  not  be  used  to  further 
temporary  purposes,  e.g.  that  it  must  not  be  used  or  misused  per- 
haps to  punish  those  having  one  tendency  and  to  spare  those  having 
another.  If  criminal  law  were  in  all  respects  an  original  attribute 
of  the  State,  such  a  course  would  not  be  so  injurious  and  demoraliz- 
ing. The  preservation  to  the  public  or  to  the  injured  party  of  a 
possibility  of  a  supplementary  prosecution,  even  against  the  will 
of  the  sovereign  or  the  State,  is  a  very  wholesome  corrective  to 
that  opinion  (which  may  easily  arise)  that  the  excellence  of  the 

-  The  individual  is  often  also  inuler  the  not  less  adiial  coercion  of 
morality. 

^  That  for  a  Ions  time  a  different  condition  ol)taincd  among  tiic  Ki)mans 
has  been  stated  above;  l)Ut  this  is  not  evidence  ajrainst  tlif  arfriMiicnt  in 
the  text,  since  it  was  not  utdil  later  that  this  rifjht  of  e.xile  aro.st-,  wlu-n  the 
pride  of  the  Roman  citizen  no  longer  allowed  an  nclii'C  exerci.se  of  the 
criminal  power. 

*  E.  \'()n  /fnrlmniin,  "Phäiiomenol()t,de",  p.  202,  justly  calls  atti-ntion 
to  the  fact  that  this  i)roc('ss  of  transfer  has  by  no  means  comph-tely  ended. 
It  is  in  part  upon  this  that,  there  depends  tlie  continu(>d  existence  of  duel- 
ling in  spite  of  the  criminal  laws. 

511 


§  105]  APPENDIX 

l)arty  in  power  can  offset  minor  breaches  of  the  criminal  law 
which  become  intolerable  when  rei)eate(l.  As  the  eminent  French 
jurist,  Faustin  Ilelie,'^  has  stated:  criminal  prosecution  rests 
partly  with  the  community  and  not  exclusively  with  the  State. 
The  supplementary  complaint  instituted  by  a  private  citizen 
is  (if  guarded  with  sufficient  precautions)  a  proposition  justifiable 
from  the  viewpoints  both  of  history  and  of  logic. 

In  the  case  of  grave  violations  of  the  duty  to  punish  crime, 
the  idea  that  this  despotic  power  of  the  criminal  authorities  injures 
society  manifests  itself  in  an  elementary  way  in  lynch  law  and 
acts  of  violence.  This  also  has  a  bearing  upon  the  fact  that  legis- 
lation in  criminal  matters  must  not  depart  too  far  from  popular 
sentiment,  and  that  in  criminal  legislation  there  may  be  seen  a 
direct  reflection  of  the  civilization  of  the  people. 

The  objection  can  always  be  raised  —  and  in  fact  has  been 
raised  —  that  disapprobation  contains  nothing  that  makes  its 
lyradical  application  necessary  —  at  least  not  in  the  form  of  crim- 
inal procedure,  and  even  less  in  the  actual  infliction  of  the  punish- 
ment. If  only  disapprobation  were  involved,  one  might  in  legis- 
lation go  no  farther  than  to  set  up  general  principles  which  would 
disapprove  of  one  act  or  another.  However,  in  this  objection  it 
has  been  overlooked  that  there  would  be  no  recognizable  inclusion 
of  the  act  under  these  general  conceptions  or  principles.  It  is 
the  vengeance  of  the  injured  party,  the  punishment  inflicted  by 
the  State,  which  first  declares  that  this  concrete  act  deserves  dis- 
approval and  is  absolutely  reprehensible.  This  immediately 
becomes  clear  if  one  considers  that  there  may  be  various  grounds 
of  extenuation  for  acts  wdiich  possess  the  external  elements  of 
crime.  A  concrete  act  does  not  actually  become  a  crime  until 
this  character  is,  as  it  were,  stamped  upon  it  by  judicial  decision. 
The  reason  why  one  at  the  present  time  is  able  to  conceive  that  a 
judicial  decree  is  not  necessary  in  order  for  certain  acts  {e.g.  ag- 
gravated cases  of  murder,  etc.)  to  be  regarded  as  crimes  by  the 
public  at  large,  is  that  one  forgets  the  long  tradition  of  judicial 
decrees  which  obtains  as  a  decision  for  the  individual  case  in  ad- 
vance of  the  actual  decision.  It  would  soon  become  otherwise  if 
the  giving  of  judicial  decisions  concerning  individual  criminal 
cases  should  be  generally  discontinued.     To  become  convinced  of 

5  "Traite  de  rinstruction  criminelle",  II,  n.  473.  The  French  Court 
of  Cassation  has  also  stated:  "L'aetion  publique  appartient  ä  la  soeiete 
et  non  au  fonctionnaire  public  charge  par  la  loi  de  I'exercer." 

512 


APPENDIX  [§  106 

this,  it  is  only  necessary  to  consider  how  falsely  in  the  absence  of 
established  rules  and  regulations,  the  general  public  would  decide 
as  to  the  questions  of  responsibility  and  the  special  circumstances 
of  extenuation  (coercion,  error,  necessity,  etc.). 

§  106.  Summary.  —  Summing  up  the  foregoing  statements, 
the  purpose  of  criminal  law  is  as  follows :  "  Certain  fundamental 
principles  of  morality  should  be  publicly  and  notoriously  character- 
ized by  the  civil  community  as  inviolable  by  attaching  to  actions 
which  are  contrary  to  these  principles  an  impressive  mark  of 
disapprobation.  This  mark  also  necessarily  aft'ects  the  author  of 
the  action,  since  a  deed  and  its  author  cannot  be  contemplated 
separately.  This  is  simply  a  result  of  the  fact  that  the  civil  com- 
munity is  obliged  to  give  practical  recognition  to  the  fundamental 
maxims  of  morality." 

The  Idea  of  Disapprobation  Expressed  by  Other  Writers.  —  The 
foregoing  is  not  very  different  from  the  recent  statement  of  my 
honored  friend,  Hugo  ]\Ieyer.  lie,  however,  is  unable  to  free  him- 
self completely  from  the  traditional  view  that  the  scope  of  criminal 
law  and  the  amount  of  the  punishment  should  nls-o  be  derixed  to 
a  certain  extent  from  absolute  justice.  For  this  reason  he  often 
speaks  of  retribution  and  conceives  punishment  in  the  sense  of 
Hugo  Grotius  as  "  malum  passionis  ob  malum  actionis."  ^  His 
words  are  as  follows :  "  The  legal  basis  of  punishment  consists 
simply  in  this :  It  results  from  the  very  nature  of  the  State  that 
in  cases  of  necessity  it  give  expression  to  the  inadmissibility  of 
actions  prejudicial  to  the  civil  community  by  the  infliction  of 
punishment."  The  statement  of  ]Montesquieu  -  also  amounts 
to  the  idea  of  disapprobation,  where  he  says  that  in  the  State 
which  corresponds  to  his  ideal,  "  La  plus  grande  peine  d'une 
mauvaise  action  sera  d'en  etre  convaincu."  The  statement  of 
the  great  Leibnitz  (given  above)  also  exjiresscs  the  idea  tliat  ex- 
clusion from  the  community,  a  thing  resulting  from  disapproba- 
tion, is  the  ideal  essence  of  punishment.' 

1  " Lehrbuch  des  deutsehen  Strafrechts"  (3d  Ed.,  ISSl).  §  2.  p.  •). 

2  "Esprit  des  lois",  VI.  Ch.  9.  Cf.  also  eh.  21  :  ".  .  .  les  fortnaht^s 
des  jugements  y  soiit  des  punitions."  That  disapprobation  and  an  arti- 
ficial "infamie"  are  something  different,  scarcely  needs  to  be  assi-rtod. 

3  The  profound  and  eminently  practical  Fnincia  Lieber  (Franz  Lieber) 
also  savs  (in  his  article  "On  Penal  Law",  printt'd  in  his  "  Miscelhuieous 
Writings"  (Philadelphia,  18S1),  II.  pp.  4(i4-4<)4.  esp.  p.  47S)  :  'W  soei.-ty 
in  which  every  sort  of  wrong  might  be  permitted  with  impunity  would 
necessarily  lose  its  ethical  character.  .  .  .  The  expressit)n  of  puhUe  disap- 
proval would  be  missing."     Cf.  also  the  very  recent  system  of  "  Hechts- 

513 


§  lOG]  APPENDIX 

As  soon  as  the  purpose  of  i)uiiisliment  Is  no  longer  direc-tefl 
towards  the  person  of  the  eriniinal,  hut  ratlier  society  or  the 
community  is  regarded  as  that  which  is  aided  or  protected  by  the 
punishment,  and  the  criminal  is  regarded  merely  as  something 
incidental  —  which  he  certainly  is,  as  contrasted  to  the  community 
—  this  theory  necessarily  gains  favor.  The  theory  of  reformation 
treats  the  criminal  as  the  chief  goal  towards  which  the  purpose  of 
punisliment  is  aimed.  It  is  the  same  with  the  theory  of  retribu- 
tion. According  to  the  latter,  the  criminal  should  receive  the 
desert  of  his  acts  in  the  punishment. 

The  deterrence  theory  is  the  only  one  which  harmonizes  w'ith 
our  view  in  regarding  society,  and  not  the  criminal,  as  the  chief 
issue.  But,  on  one  hand,  it  takes  too  mechanical  and  base  a  view 
of  the  relation  between  the  criminal  and  society,  and  on  the  other 
hand  it  pays  too  little  attention  to  history.  It  is  quite  proper, 
however,  (as  Hugo  INIeyer  also  maintains)  to  ascribe  the  first 
place  among  the  relative  theories  to  the  purpose  of  deterrence 
(or,  as  we  prefer  to  say,  of  turning  away)  the  public  from  crime. 
Criminal  legislation  which,  in  respect  to  its  means  of  punishment, 
is  based  upon  the  deterrent  theory,  is  at  any  rate,  as  history 
shows,  capable  of  existing;  but  legislation  which  is  based  ex- 
clusively and  consistently  upon  the  theory  of  reformation  would 
soon  render  itself  impossible. 

IMoreover,  credence  may  not  be  given  (as  is  done  by  the  theory  of 
deterrence  in  its  too  base  conception  of  the  purpose  of  criminal 
law)  to  the  belief  that  the  criminal  law  has  its  chief  effect  upon 
the  criminal  world  or  those  who  are  irresistibly  disposed  to  crime 
because  of  evil  training,  degeneracy,  etc. ;  or  that  passion  which  has 
become  strong  and  overwhelming  can  be  held  in  check  through 
the  existence  and  operation  of  a  criminal  statute.  In  this  respect 
the  objections  to  the  deterrent  theory  are  rather  well  taken. 
Fear  of  an  indefinite  although  severe  future  evil  can  but  seldom 
counteract  the  impulse  to  crime.  Therefore,  it  is  a  great  mistake, 
in  times  when  grave  crimes  are  p^e^•alent,  to  expect  any  very  im- 
portant result  from  liberal  use  of  capital  punishment,  flogging, 
etc.     The  history  of  the  1700  s  illustrates  the  result  of  a  harsh 

Philosophie"  by  Lasson,  1881  (especially  p.  533,  §  46),  where  punishment 
is  designated  as  the  \netory  of  reason  over  its  opposite.  Yet  in  Lasson, 
punishment  rather  uncertainly  shifts  to  retribution,  since  apparently  the 
amount  of  punishment  is  to  be  derived  from  absolute  justice.  Lasson, 
moreover,  as  is  usual  w'ith  most  philosophers,  treats  the  subject  at  long 
distance  and  with,  only  a  bird's-ej'e  view. 

514 


APPENDIX  [§  lOß 

criminal  system  destructive  of  sentiment.  Tlie  truth  is  rather 
as  correctly  pointed  out  by  Schopenhauer,  with  that  clearness 
of  vision  which  he  displays  in  so  many  particulars.  He  says 
that  perhaps  the  chief  effect  of  criminal  legislation  is  that,  upon 
the  whole,  it  preserves  the  morality  of  the  better  elements  of  the 
people;  that  true  criminal  punishment  is  that  which  brings 
about  "  exclusion  from  the  great  freemasonry  of  honorable 
people,"  ^  and  that  public  opinion  judges  a  single  misstep  with 
great  and  perhaps  too  relentless  severity.' 

Kinds  and  Methods  of  Punishment.  —  For  these  reasons,  as  the 
criminal  statistics  of  various  countries  show,  it  makes  no  very 
considerable  difference,  in  respect  to  the  more  heinous  crimes, 
whether,  icitliin  certain,  limits,  the  penalties  are  administered  in 
one  manner  or  in  another. 

But  on  the  other  hand,  in  respect  to  the  less  heinous  cases, 
blunders  of  legislation  are  far  more  important.  If  here  the 
proper  distinction  between  honorable  actions  and  disiionorable 
actions  is  not  drawn,  and  if  e.g.  persons  who  are  generally  respected 
but  who  have  failed  to  comply  with  some  mere  regulation  of  the 
State,  —  perhaps  even  from  considerations  of  conscience  —  are 
treated  as  common  criminals,  one  cannot  help  wondering  if  in  such 
a  case  an  axe  is  not  laid  at  the  root  of  morality  and  the  legal  system, 
and  if  the  echo  of  its  stroke  is  interpreted  in  the  criminal  world  as 
showing  that  no  very  essential  difference  exists  between  honorable 
people  and  itself.^  Therefore,  legislation  in  dealing  with  offenses 
against  mere  police  regulations  should  be  more  sparing  with  those 
penalties  of  imprisonment  with  which  it  is  now  so  liberal,  at  least 
as  alternative  punishments  (at  the  discretion  of  the  judge).^ 
As  quite  correctly  stated  by  Von  Ihering,  "  It  is  not  disobedience 
but  rather  attack  upon  the  conditions  of  the  life  of  society  which 
constitutes  the  essence  of  crime.     Therefore,  wh(Tc  the  ciu(v>ti()ii 

*  Punishmont  for  violation  of  polico  rofjulrition  is  taken  up  later. 

5  "Grundi)r()l)lerne  der  Ethik"  (2  Ed.,  pp.  100,  187).  Lieber  (p.  470) 
says  that  in>^ccurily  is  not  the  worst  evil  resulting;  from  frequeiU  non- 
punishment  of  grave  crimes,  or  as  we  would  add,  actions  deserving  l)tinish- 
ment,  l)Ut  rather  the  general  lowering  of  the  moral  standard.  For  this 
reason,  although  not  for  this  reason  exclusively,  the  certainty  of  punisli- 
ment  is  more  important  tlian  its  amount.  The  fact  that  a  tiling  trill  ho 
punished  is  more  important  tlian  how  it  will  be  punished.  Naturally  this 
principle  must  be  taken  "cum  grano  salis." 

•■'  For  this  reason  that  system  of  tutelage  which  is  now  so  popular  and 
which  requires  coercion,  i.e.  requires  punisiiment,  isultimatelv  demoralizing. 

^  "Der  Zweck  im  Rechte".  1  (1S79),  p.  4SI.  Cf.  also  Schulze.  "Leit- 
faden der  Entwicklung  der  i)liilosopiiischen  Principien  des  bürgerlichen 
und  peinlichen  Rechts"  (1813),  \).  2.')9. 

515 


§  lOGl  APPENDIX 

is  merely  to  overcome  disol)e(lience,  only  those  punishments 
should  be  employed  which,  to  the  greatest  degree,  render  impossible 
the  confusion  of  such  a  case  with  cases  of  punishment  for  crime." 
Lieber  ^  directly  opposes  this  conception  of  disobedience.  "  One 
should  avoid  any  appearance  of  punishing  as  if  for  the  reason  that 
the  transgression  or  offender  has  ventured  to  be  disobedient. 
In  other  words,  punishment  is  inflicted  because  the  authorities 
represent  the  purpose  of  the  common  good,  and  therefore  dis- 
obedience to  the  authorities  is  an  offense,  i.e.  is  immoral." 

According  to  the  foregoing  argument,  anything  which  entails 
a  disadvantage  for  the  party  to  be  punished  is  "  in  abstracto  " 
applicable  as  a  means  of  punishment.  For  every  disadvantage 
done  to  the  author  of  an  act,  on  account  of  the  act,  expresses  a 
disapprobation  of  the  same,  and  that  which  is  taken  or  diminished  is 
merely  something  which  is  generally  regarded  as  a  gift  of  the  legal 
system,  —  since  the  right,  in  case  of  extremity,  extends  even  to 
destruction  of  the  criminal.  However,  the  most  perfect  kind  of 
punislmient  is  that  by  which  the  criminal  himself  is  brought  to 
disapprove  of  the  act  that  has  been  done,  inwardly  renounces  it, 
and  is  reformed.  Here  the  objective  disapprobation  of  the  act 
becomes  a  subjective  one.  But  it  always  remains  as  the  essential 
element,^  on  account  of  the  primarily  objective  character  of  dis- 
approbation, that  public  opinion  should  regard  the  action  usually 
taken  as  a  sufficient  disapprobation,  and  that  not  too  much  consid- 
eration be  paid  to  the  personality  of  the  individual  criminal.  By 
the  last  mentioned  consideration,  justice  incurs  the  danger  of  losing- 
its  supremacy,  certainty  and  dignity,  and  of  degenerating  into  a 
system  of  physical  suffering  and  breaking  of  the  will,  which  serves 
as  a  basis  for  niunerous  blunders.  Punislmients  invohing  physical 
suffering  which  bear  the  stamp  of  a  seeking  after  indi\-idual  ven- 
geance are  at  variance  with  quiet  and  deliberate  disapprobation 
through  the  public  authorities.  The  same  is  the  case  with  punish- 
ments which  are  usually  applied  to  animals,  since  disapprobation 
has  meaning  only  as  against  the  acts  of  rational  beings  and  it  is 
necessary  that  the  expression  of  such  disapprobation  be  retained. 

The  same  objections  may  be  raised  to  punislmients  which  are  so 

8  Lieber  (Note  27,  ante),  p.  493. 

^  Therefore  it  is  no  objection  to  a  method  of  punishment  that  certain 
individuals  of  a  type  still  existing  do  not  regard  it  as  a  punishment,  as  a 
murderer  must  be  sentenced  to  death,  if  the  law  prescribes  capital  punish- 
ment for  murder,  although  he  committed  the  murder  from  weariness  of 
life  so  as  to  die  on  the  scaffold.  The  State  in  punishing  may  not  accom- 
modate itself  too  much  to  the  criminal. 

516 


APPENDIX  [§  1(17 

excessive  as  to  immediately  arouse  pity,  because  pity  dispels 
disapprobation.  This  also  applies  to  punishments  which  are  ap- 
propriate only  under  quite  exceptional  circumstances.  This  last 
objection,  together  with  others,  may  be  raised  to  punishment  by 
flogging  which  is  now  so  popular.  On  the  other  hand  punish- 
ment by  deprivation  of  property  is  not  objectionable  merely  be- 
cause one  individual  feels  it  but  little  or  because,  in  the  case  of 
others  who  have  no  means  of  paying,  it  must  be  changed  into  some 
other  penalt}'.  For  both  reasons,  however,  it  cannot  represent 
the  higher  and  sharper  degree  of  disapprobation.  That  capital 
punishment  is  not  absolutely  improper  follows  directly  from  the 
original  right  of  destruction.  But  whether  it  is  relatively  improper, 
i.e.  improper  for  a  given  period  of  time  and  a  certain  stage  of 
culture,  is  quite  a  different  question,  for  it  is  by  no  means  an  ab- 
solute requirement  of  ethics.  The  means  of  punishment  is,  as  we 
have  already  remarked,  a  part  of  the  question  of  the  amount  of 
the  punishment,  and  that  this  is  dependent  upon  time  and  cir- 
cumstances is  ob\'iously  manifest. 

§  107.  The  Degree  of  Punishment.  —  But  if,  as  according  to 
our  view,  the  criminal  is  placed  at  the  absolute  disposal  of  the 
community,  so  far  as  concerns  the  expression  of  its  disapproba- 
tion, what  becomes  of  that  justice  which  we  feel  is  requisite  in 
the  fixing  of  the  degree  or  amount  of  the  punishment  ? 

The  answer  to  this  question  is  simple.  This  justice  appears 
only  by  considering  the  historical  element  in  criminal  law.  It 
has  nothing  to  do  with  the  basis  of  criminal  law.  Punishment  and 
crime  {i.e.  immoral  acts  detrimental  to  the  conditions  upon  which 
depend  the  life  of  society  and  therewith  the  life  of  the  State)  are 
not  commensurable.  If  they  were  commensurable,  then  the  theory 
of  retribution  would  be  tenable,  at  any  rate  theoretically,  if  not 
practically.  For  example,  how  can  one  balance  the  larcenous 
taking  of  a  purse  with  a  year's  imprisonment?  And  even  in  the 
death  penalty  —  the  favorite  example  to  adduce  —  the  balance 
is  very  imperfect,  at  least  in  many  cases.  If  a  murderer  lies  in 
wait  for  his  victim  and  by  a  single  well-directed  blow  strikes  him 
dead,  is  such  a  death  physically  equal  to  the  death  on  the  scaffold 
with  the  mental  tortures  of  a  long  period  of  expectation?  We 
must  cease  to  speak  of  the  justice  of  punishments,  unless  we  either 
cease  to  punish  many  cases  now  punished  or  unconsciously  measure 
out  the  punishment  in  accordance  with  historical  tradition. 
Criminal  law  is  no  more  able  to  estimate  crimes  than  the  govern- 

517 


§  107]  APPENDIX 

mental  authorities  are  able  to  place  an  absolute  value  on  property 
and  industry.  But  there  is  always  a  justness  in  treating  like 
matters  in  a  similar  manner  or  in  like  matters  producing  a  like 
result.  x\nd  so  in  criminal  punishments  it  is  tradition  which 
furnishes  the  justness. 

While  the  valuation  of  the  degree  of  criminality  is  primarily 
arbitrary,  yet  tradition  allows  considerable  room  for  the  exercise 
of  discretion.  No  one  can  say  (unless  he  refers  to  the  very  de- 
tailed provisions  of  a  definite  statute)  whether,  for  a  certain  crime, 
two  and  one  half  or  three  years  in  prison  should  be  the  proper 
penalty.  Nothing  can  be  said  as  to  absolute  justice  or  injustice 
in  regard  to  the  question  of  solitary  confinement  or  ordinär}'  con- 
finement for  a  prisoner  or  his  employment  at  one  task  or  another. 
Within  this  rather  extensive  province  the  State  is  given  a  free 
hand,  since  the  administration  of  justice  should  be  made  to  serve 
the  welfare  of  the  public  and  to  pursue  freely  purposes  beneficial 
to  the  community.  Herein  good  results  may  be  obtained  from  the 
purpose  of  turning  the  criminal  into  a  useful  member  of  society. 

§  108.  What  Acts  should  be  Punished.  —  From  the  principle 
of  disapprobation  which  we  have  adopted,  it  follows  that  it  is 
only  in  certain  grave  violations  of  morality  that  the  voice  of  public 
disapproval  is  given  general  manifestation  ;  it  does  not  follow  that 
this  disapproval  extends  to  every  violation  of  morality.  The  State 
is  not  the  blind  instrument  of  an  absolute  principle.  It  does 
not  adopt  the  maxim  :  "  Fiat  justitia  pereat  mundus  ",  but  rather 
the  principle  that  justice  prevails  that  thereby  the  world  may 
continue  to  exist.^  Our  principle  is  absolute  only  in  the  sense 
first  mentioned. 

As  the  individual  may  have  reasons  to  be  sparing  of  his  moral 
judgments,  so  is  it  even  to  a  greater  degree  with  the  State.  The 
disapproval  of  the  State  is  an  authoritative  one.  On  one  hand  it 
presupposes  the  utmost  precision  and  certainty  in  the  judgment  of 
the  act,  and  on  the  other  hand  it  is  conclusive  as  against  the  in- 
dividual.    For  this  latter  reason  this  disapproval  must  extend  only 

1  Herein  the  principle  adopted  differs  very  essentially  from  all  tlie 
absolute  principles  heretofore  advanced,  in  which  it  is  quite  inipossible 
to  preserve  room  for  a  discussion  of  purposes  of  expediency  ^vithout  a 
breach  of  logic.  Even  Hegel  does  not  seem  to  have  understood  this 
point.  It  is  in  this  sense  that  I  have  stated  that  punishment  is  a  designed 
and  artificial  measure  for  the  individual  case  ("Grundlagen",  p.  9). 
Heinze  (p.  298,  note),  who  indeed  recognizes  a  reprobation  theory  as  a 
logical  development  of  Hegel's  principle,  has  therefore  misunderstood  me, 
since  he  seems  to  regard  this  "designed  and  artificial  measure"  as  a  devia- 
tion from  the  absolute  principle  of  punishment. 

518 


APPENDIX  [§  108 

to  a  relatively  small  number  of  acts.  Otherwise  it  will  eliminate 
the  freedom  of  the  individual,  and  in  so  doin«:;  destroy  the  source 
of  morality  and  of  voluntary  devotion.  At  tiie  same  time  it  would 
destroy  that  moderate  and  proper  ejjoism  which  ultimately  operates 
for  the  good  of  all  and  is  a  mighty  impetus  towards  human  prog- 
ress. 

Naturally  this  disapproval  should  extend  preferably  towards 
acts  which  violate  the  rights  of  others,  —  this  is  in  accordance  with 
the  historical  origin  of  the  criminal  law  of  the  State  in  the  vengeance 
of  the  individual.  Acts  whose  disadvantageous  results  almost 
exclusively  or  even  generally  fall  upon  the  author  of  the  act  are 
not  the  objects  of  the  disapproval  of  the  State,  although  they  have 
a  remote  effect  upon  the  interest  of  others  and  of  the  public  at  large. 
This  is  also  in  accord  with  many  practical  reasons,  such  as  diffi- 
culty of  determining  the  questions  of  fact,  of  guilt,  the  imperfect 
equipment  of  the  public  for  the  discovery  of  the  act,  etc. 

Since  the  disapprobation  of  the  State  entails  a  disadvantage 
for  the  party  toward  whom  it  is  directed,  and  since  it  always  (in 
criminal  procedure)  operates  by  virtue  of  numerous  means  of 
coercion  and  entails  much  expense,  or  at  least  loss  of  time  to  the 
parties  concerned,  and  since  it  imposes  a  very  severe  temporary 
evil  even  upon  innocent  suspects  —  e.g.  imprisonment,  temporary 
loss  of  reputation,  —  it  is  always  an  evil  in  itself.  Where  unlawful 
or  immoral  acts  find  a  sufficient  disapproval  in  some  other  way  or 
fail  to  attain  the  intended  result  (particularly  because  of  the  milder 
remedies  of  private  law),  it  is  reasonable  and  indeed  necessary  that 
the  punishments  of  the  State  be  dispensed  with. 

The  Principle  of  Parsimony  in  Punishment.  —  The  aspect  of 
criminal  law  from  the  viewpoint  of  national  economy  is  important. 
In  former  times  human  unhaj^piness  and  pain  were  s{|uandered 
lavishly.  Beccaria  is  entitled  to  credit  for  having  first  brought  to 
attention  comprehensively  -  the  principle  of  the  greatest  possible 
parsimony  with  penalties  and  the  superfluity  of  many  punish- 
ments. Where  other  means  are  efi'ective  for  the  realizati«>n  of 
the  law  the  use  of  punishment  is  inexcusable,  since,  as  correctly 
stated  by  Von  Ihering,^  it  recoils  upon  society.     Thibaut  '  indeed 

-  This  phase  of  tlie  subjeft  finds  ob\-ious  applifation  to  the  means  an«! 
the  amount  of  punishment.  Cf.  WdhUn-rg,  "C'riminalistisclie  und  national- 
ökonomische Gesichtspunkte  mit  Hücksicht  auf  das  deutsche  Reichs- 
strafrecht" (1872),  pp.  96  cl  xc(i. 

3  "Der  Zweck  im  Rechte",  1,  p.  477;    cj.  p.  362. 

^  "Beiträge  zur  Kritik  der  F'euerhach'schen  Theorie"  (1802),  p.  103. 

519 


§  108]  APPENDIX 

called  the  criminal  law  a  "  testimonium  paupertatis  "  which  the 
authorities  of  the  State  exhibit.  We  would  at  least  assert  that 
every  new  criminal  statute  is  a  certificate  of  poverty  for  the 
moral  condition  of  society.  The  disapprobation  of  the  State  is 
the  artificial  and  organized  disapproval  of  an  act  and  is  necessary 
only  when  there  is  not  sufficient  spontaneous  disapproval  on  the 
part  of  unorganized  society.^ 

Consideration  should  also  be  given  to  tradition  or  history. 
There  is  no  more  an  absolute  principle  of  justice  for  the  choice  of 
the  acts  for  which  punishment  is  to  be  inflicted,  than  there  is  for 
determining  the  means  of  punishment.  There  exists,  however,  a 
relative  principle  of  justice,  in  the  sense  that  acts  which  possess 
the  same  elements  of  immoral  or  detrimental  significance  may  not 
be  given  different  treatment,  and  that  the  State  may  not  act  in- 
consistently with  the  history  of  the  people  in  respect  to  the  choice 
of  acts  to  be  punished.  Inconsistent  action  of  this  character  creates 
the  opinion  that  criminal  justice  is  not  the  result  of  an  inevitable 
necessity  but  rather  of  despotic  action  and  possibly  of  error,  and 
that  it  is  not  the  expression  of  moral  disapprobation,  since  moral 
opinions  change  very  slowly.  There  are,  to  be  sure,  perverse 
traditions,  just  as  there  are  perverted  formations  of  physical  being. 
But  they  can  be  recognized,  if  one  survey  long  periods  of  the  life 
of  the  people,  and  of  their  history,  or  if  one  is  sufficiently  un- 
prejudiced to  study  closely  the  instructive  example  of  the  legal  life 
of  other  peoples.  Moreover,  the  significance  of  an  act  can  vary 
with  time  and  circumstances.  And  with  individuals  who  are 
advanced  in  years,  so  with  peoples  having  an  old  and  well-es- 
tablished culture,  general  theories  have  but  little  influence  upon 
practical  action,  which  is  already  governed  by  detailed  provisions 
regarded  as  fixed  and  inviolable.  Perverted  philosophical  doctrines, 
pessimism,  or  extreme  religious  principles  (e.g.  the  infallibility  of 
the  Pope),  are  not  nearly  so  dangerous  to-day  as  they  would  have 
been  a  few  centuries  ago  or  during  the  ^Middle  Ages. 

Punishments  which  do  not  possess  a  certain  connection  with 
tradition  are  somewhat  odious,  even  when  emanating  from  the 
spirit  of  weU-intended  moral  reform.  This  is  quite  natural,  as 
the  people  regard  punishment  as  merely  an  echo  of  their  own  dis- 
approval.    Such  acts  appear  to  be  merely  acts  of  despotism  and 

5  Von  Ihering,  pp.  478,  479,  pertinently  points  out  that  e.g.  in  busi- 
ness, dishonestj^  may  become  so  great  that  it  cannot  be  counteracted  by 
civil  remedies  without  great  injury  to  the  communit3^ 

520 


APPENDIX  f§  108 

undermine  the  effectiveness  of  criminal  justice  in  other  cases.  Too 
many  punishments  create  indifference.  One  must  not  imagine 
that  every  coarse  or  vulgar  act,  every  little  violation  of  right,  may 
demand  suppression  by  punishment.  The  State,  like  the  individ- 
ual, must  learn  to  endure  many  minor  iniquities ;  it  must  re- 
member that  the  world  will  not  immediately  come  to  an  end  and 
that  Nature  has  guarded  against  the  trees  growing  up  to  the  sky, 
and  it  must  have  confidence  in  the  firmness  of  its  own  position  and 
in  the  natural  effective  power  of  moral  opinions.  Where  there  is 
a  progressive  increase  of  penal  statutes,  or  where  upon  every 
occasion  the  public  raises  a  general  cry  to  help  something  by  penal 
statutes  or  to  increase  the  se\-erity  of  the  penal  statutes,  it  is  not 
well  for  freedom.  For  every  penal  statute  is  really  one  more  in- 
road upon  freedom.  And  the  ultimate  results  may  well  be  felt 
most  keenly  by  those  who  have  been  the  most  noisy  in  demanding 
it.  One  may  well  ponder  the  maxim  of  Tacitus :  "  Pessima  res- 
publica,  plurimffi  leges."  ^ 

Expediency  and  Justice  in  Punishment.  —  While,  upon  our 
theory,  the  choice  of  acts  to  be  punished  by  the  State  is  determined 
by  numerous  reasons  of  expediency,  yet  there  is  here  no  antagonism 
between  expediency  and  justice.  It  is  rather  that,  from  the  stand- 
point of  the  State,  expediency  is  at  the  same  time  justice.  How- 
ever, an  act  of  which  the  moral  sense  of  the  people  does  not  dis- 
approve should  not  be  punished.  Practically  speaking,  this  is  an 
acceptance  of  the  viewpoint  adopted  by  Rossi  and  Mittermaier, 
where  they  seek  to  limit  absolute  justice  by  reasons  of  exj)ediency, 
a  correct  standpoint  and  therefore  a  favorite  of  legislative  proposals 
and  legislative  assemblies.  But  theoretically  it  is  erroneous  to 
weld  together  in  such  a  manner  absolute  justice  or  retribution 


"  Thibaut,  "Beiträge  zur  Kritik  der  Feuerbach'sehen  Theorie"  (p.  100), 
says  that  the  ruler  does  not  stand  so  high  and  is  not  the  representative 
of  God  upon  the  earth  in  the  sense  that  he  can  enact  eriniinal  statutes  in 
eontlif't  with  the  sentiments  of  his  subjects.  To  punish  in  viohition  of 
prevailing  opinion  is  not  conferring  a  lienefit  but  rather  is  inflicting  a 
punishment  upon  the  nation.  This  matter  is  no  longer  an  issue  in  con- 
stitutional States,  but  nevertheless  temporary  opinions  and  disturl>ances 
can  be  utilized  to  extort  the  approval  of  the  representatives  of  the  people 
to  perverted  criminal  statutes  in  violation  of  tiie  spirit  <)f  history  and  the 
entire  legal  system.  A  notable  e.xample  of  the  opposite  kind  —  resist- 
ance of  temporary  opinion  ■ —  was  furnished  on  Oct.  2().  ISSO.  by  the 
Minister  of  Justice  of  Holland.  Modderniann,  when  in  a  long  argument 
he  undertook  to  disprove  the  alleged  reasons  for  tlu>  rcestablishnient  of 
the  death  penaltv.  Cf.  the  translation  of  this  argument  in  the  "•  Münch- 
ener kritische  Vierteljahrsschrift  für  Gesetzgebung  und  Rechtswissen- 
schaft" (1881),  Vol.  23,  pp.  9ü  d  seq. 

521 


§  108]  APPENDIX 

and  expediency.  The  State  does  not  exercise  absolute  justice  ; "  it 
exercises  merely  relative  justice,  and  such  it  does  when  it  defines 
the  various  cases  to  which  the  rigid  principle  of  organized  public 
disapprobation  shall  apply  or  shall  not  apply,  in  pursuance  of 
purposes  of  expediency  which  for  all  of  these  cases  are  the  same. 
It  is  not  a  departure  from  justice  for  purposes  of  expediency,  but 
rather  genuine  and  exact  justice,  when  the  State  inflicts  a  lesser 
degree  of  punishment  for  an  attempt  at  a  crime  than  for  the  con- 
summated crime,  or  when  it  pays  so  much  attention  to  the  outcome 
in  a  question  of  punishment,  or  when  it  does  not  punish  a  shameful 
seduction  but  does  punish  an  act  of  violence  which  is  possibly 
not  so  immoral,  or  when  much  refined  dishonesty  in  business 
matters  is  ignored  but  he  who  steals  a  sausage  from  the  market 
is  haled  before  the  criminal  judge. 

The  fact  is  simply  that  the  State  (the  law)  measures  illegal  or 
immoral  intention  to  a  certain  extent  by  external  result.  This 
same  principle  leads  to  the  ignoring  of  that  will  which  does  not 
manifest  itself  in  some  external  action  that  may  be  definitely  rec- 
ognized ("  Cogitationis  poenam  nemo  patitur !  ") ;  and  it  ulti- 
mately orders  that  less  punishment  be  inflicted  for  the  attempt 
than  for  the  consummated  act.  Furthermore,  this  regard  for  a 
safe  criterion  of  application,  and  one  excluding  despotism  and 
purely  individual  opinion,  also  leads  to  the  use  of  a  somewhat 
rigid  moral  criterion,  which  is  not  sufficiently  pliant  to  permit 
of  its  being  applied  to  many  relations  which  the  individual  at  least 
believes  can  be  passed  upon  judicially.  The  morality  applied  by 
the  State  in  criminal  law  is  somewhat  crude.  However,  its 
gradual  refinement  in  the  course  of  time  is  not  precluded.     In- 

^  I  am  unable  to  concur  in  the  attempts  recently  made  by  Hugo 
Meyer  ("Die  Gerechtigkeit  im  Strafrecht",  "Gerichtssaal",  1881,  pp. 
101-153  and  pp.  lGl-188 ;  also  published  separately)  to  separate  justice 
and  utility  or  expediency  in  criminal  law.  This  merely  is  a  result  of 
Meyer's  conception  of  punishment  as  an  act  of  retribution.  A  consistent 
use  of  the  process  of  separation  employed  by  ]\Ieyer  would  show  that 
ultimately  practically  nothing  is  left  for  justice  (even  the  justice  of  the 
"Cogitationis  poenam  nemo  cogitur"  tends  to  disappear),  or  that  the 
just  pro\dsions  proposed  by  Meyer  rest  just  as  much  on  grounds  of  ex- 
pediency as  those  which  lie  places  in  the  di^^sion  of  expediency.  The 
practical  result  of  Hugo  Meyer's  \aew  would  be  a  tendency  to  extend  the 
criminal  law  to  many  acts  not  now  punishable.  For  the  justice  —  i.e. 
according  to  Meyer,  if  one  closely  consider  the  inner  immorality  —  is 
upon  first  glance  the  same  in  many  acts  not  now  punishable  or  only 
lightly  punished  as  in  many  which  are  punishable  and  punished  severely. 
This  questionable  tendency  is  also  very  prominent  in  Hugo  ^Meyer's 
treatise.  In  opposition  to  Meyer,  cf.  Merkel,  "Zeitschrift  für  die  ges. 
Straf rechtswissenschaft",  1881,  pp.  5Ö6-558. 

522 


APPENDIX  [§  108 

deed,  this  appears  decidedly  possible  if  we  compare  the  early  Ger- 
manic criminal  law  with  that  of  the  present  time.  But  mora  lit  \' 
in  its  narrower  sense  also  advances  and  becomes  more  and  more 
refined,  at  the  same  time  that  the  coercive  morality  of  the  State 
progresses ;  and  so,  for  immeasurable  ages,  the  ditVerence  between 
them  continues,  and  the  application  of  principles  to  matters  of 
detail  in  the  fixing  of  the  boundaries  between  them  must  always 
be  attended  with  doubt  and  controxersy. 

Criminal  Law  and  Morality  in  its  Narrower  Sense.  —  The  fact 
that  the  morality  of  the  State  in  its  form  and  operation  as  criminal 
law  is,  as  it  were,  a  net  of  coarse  mesh,  has  indeed  one  advantage, 
viz.  that  it  can  be  relied  upon  with  more  certainty  than  that  more 
discriminating  moral  judgment  which  the  individual  is  in  a  posi- 
tion to  pass  (or  believes  that  he  is).  But  this  character  of  the 
State's  morality,  together  with  the  fact  that  the  State,  not  being 
infallible,  sometimes  enacts  radically  erroneous  penal  measures, 
makes  it  possible  for  a  criminal  law  to  come  into  conflict  with  the 
moral  sense  of  the  individual  and  even  of  the  entire  population.** 
For  these  reasons,  furthermore,  it  is  possible  that  an  act  which  is 
contrary  to  the  criminal  law  may  appear  to  be  permissible  (or 
even  commanded)  by  a  free  moral  judgment  which  is  independent 
of  the  rule  expressed  in  positi\'e  law.^ 

8  But  such  conflicts  are  frequently  based  upon  an  illusion.  Epoisni, 
which  will  not  bring  itself  into  accord  Avith  general  morality,  flatters  itself 
with  the  idea  that  its  condition  or  its  case  requires  an  e.xtraordinary 
decision. 

8  With  this  and  with  his  statements  previously  referred  to,  lIn(jo 
Meyers  ("Lehrbuch",  §  4)  objection  that  in  regard  to  no  act  could  it 
be  said  in  advance  that  it  is  immoral  is  refuted.  1  believe  if  this  cannot 
be  said  in  advance,  it  cannot  be  said  afterwards.  The  only  reason  fur 
which  a  judgment  according  to  the  fundamental  principles  of  morality 
must  be  omitted  is  that  the  exact  circumstances  of  the  act,  subjective  and 
objective,  are  not  known.  It  cannot  be  perceived  why  the  iina-rinatiDU 
is  not  sufficiently  able  to  portray  the  act  in  advance.  For  example,  did 
there  not  take  place  in  Rome  many  acts  which  are  in  conflift  with  tho 
moral  sentiments  of  one  reading  of  them?  Morality  is  not  such  an  in- 
dividual matter,  as  Hugo  Meyer  believes.  If  so,  it  would  be  unfortunate 
for  the  social  life  of  mankind  and  for  human  dc'velopment. 

The  question  may  also  be  asked,  what  basis  can  there  be,  other  than 
morality,  upon  whi'chtMeyer  founds  his  retributing  justice.  He  rejects 
the  derivation  of  criminallaw  solely  from  purposes  of  expediency.  P(T- 
haps  Meyer's  view  has  been  iufluciiced  I>y  th(>  ingenious  «-ssay  of  Kiimelin 
which  he  cites  ("Ueber  die  Idee  der  dereclitigkeit ")  in  Hiinnlin, 
"Reden  und  Aufsätze",  II,  ISSl.  pp.  17<)-'202).  Here  retribution  i.s 
expressly  made  the  basis  of  the  criminal  law,  but  in  a  peculiar  manner, 
for  this  conclusion  is  not  derived  from  the  premise  of  moral  retribiilKui, 
but  from  the  idea  of  equalitv.  According  to  this  tiie  most  rigorous  retalia- 
tion in  kind  ("taUo")  woiild  constitute  the  spirit  of  the  criminal  law 
But  even  this  principle  of  justiflcation  cannot  be  completely  separated 

523 


§  108]  APPENDIX 

But  all  this  is  merely  an  exception  due  to  the  general  imperfec- 
tion of  human  afi'airs.  It  is  by  no  means  a  ground  of  objection  to 
the  doctrine  which  sees  the  crime  as  immoral  action.  Furthermore, 
when  considered  closely,  it  comes  to  the  same  thing,  whether  we  say 
(as  above) :  "  Crime  is  an  action  at  variance  with  morality  —  an 
action  which  the  State,  since  the  act  seems  especially  burdensome 
(or  disadvantageous)  to  the  general  welfare,  feels  itself  obliged  to 
subject  to  special  disapproval  ",  or  whether  we  say  (with  Von 
Ihering)  ^"^ :  "  Crime  is  an  endangering  of  the  conditions  upon  which 
depend  the  life  of  society,  declared  to  be  such  by  the  State  ",  or 
whether  w^e  say  (with  Hugo  IMeyer) :  "  Crimes  are  acts  threatened 
with  punishment  by  the  State  and  which  are  at  variance  with  the 
conditions  upon  which  the  community  and  its  progress  depend." 
The  apparent  difference  rests  only  in  that  error  which  has  long  since 
been  laid  to  rest  by  modern  philosophy,  but  which  frequently  stalks 
forth  among  the  jurists,  viz. :  that  morality  is  something  purely 
individual  and  that  each  one  makes  for  himself  his  own  conscience. 
Morality  and  conscience  are  products  of  the  development  of  the 
human  race  for  a  thousand  years,  —  products  which,  like  law, 
show  different  phases  of  development  at  different  periods.  The 
act  that  is  contrary  to  morality  is  simply  an  act  which,  according 
to  the  opinions  at  the  time  prevailing  among  the  people  in  ques- 
tion, is  more  or  less  out  of  harmony  with  or  in  contradiction  to 
the  ultimate  goal  of  man,  his  progress  and  the  conditions  of  his 
existence. 

§  109.  Tort  and  Crime.  —  The  distinction  between  civil  wrongs 
(i.e.  torts)  and  wrongs  punishable  criminally  is  now  apparent. 
A  civil  wrong  represents  a  condition  at  variance  with  a  right  re- 
gardless of  whether  it  is  founded  upon  an  action  contrary  to 
morality.  Wrong  punishable  criminally  is  an  act  specially 
characterized  as  being  contrary  to  morality;    and  it  is  generally 

from  morality,  as  Rümelin  admits  (p.  192).  ("Forgiveness  of  injuries 
suffered  may  be  favored  by  religion  and  morality",  but  it  can  never  be  a 
principle  of  a  legal  system  since  it  would  make  wrongdoers  the  lords  of 
society.")  But  Rümelin's  principle  is  completely  untenable,  from  the 
historical  standpoint.  The  "talio"  has  never  been  a  fundamental  prin- 
ciple of  the  criminal  law,  but  only  a  principle  tending  towards  moderation. 
It  may  also  be  asked  whether  this  idea  of  equality,  which  closely  regarded, 
is  merely  an  idea  of  relative  evils,  has  any  claim  to  preservation.  In  the 
statement  of  Rümelin  above  quoted,  the  idea  of  deterrence,  otherwise 
only  incidentally  observed,  creeps  in,  since  punishment,  i.e.  not  forgiving, 
is  justified  bj'  the  remark  that  otherwise  the  WTongdoers  would  become 
the  lords  of  society. 

10  "Der  Zweck  im  Rechte",  I,  pp.  480,  481. 

524 


APPENDIX  [§  109 

but  not  necessarily  a  violation  or  at  least  a  jeopardizing  of  a  sub- 
jective right.'  It  is  not  possible  "  a  priori  "  to  go  further  in  fixing 
the  distinction  between  civil  wrongs  and  wrongs  punishable 
criminally,  since,  according  to  the  premises,  the  conception  of 
crime  can  not  "  a  priori  "  be  completely  determined  for  a  definite 
positive  law  and  a  definite  period  of  time. 

Hegel's  Distinction.  —  Especially  is  it  incorrect  to  hold  with 
Hegel  that  the  distinction  consists  in  crime  being  intentional  wrong 
and  in  tort  being  unintentional  or  innocent  wrong.  The  positive 
law  shows  us  that  there  are  acts  of  negligence  which  are  j)unished 
criminally,  and  that  on  the  other  hand  there  are  cases  of  wrong  com- 
mitted quite  intentionally  which  nevertheless  remain  merely  t(»rts ; 
for  example,  when  a  person,  openly  and  with  knowledge  of  its 
illegality,  but  without  other  violence  to  person  or  thing  occupies 
a  piece  of  ground  belonging,  to  another,  or  when  one  shamelessly 
refuses  to  discharge  an  obligation  of  debt  unequivocally  entered 
into.  It  is  not  proper  to  regard  these  instances  as  errors  of  the 
law ;  nor  to  maintain,  that  negligence  should  be  completely 
eliminated  from  the  province  of  criminal  law  and  that  every  inten- 
tional wrong  should  incur  the  reaction  of  the  criminal  law.  The 
importance  for  the  civil  community  of  an  intentional  act  of  the 
individual  is  not  to  be  measured  solely  by  whether  or  not  it  is  the 
direct  cause  of  an  action,  of  a  result  which  the  State  disapproves. 
Rather  (and  most  essentially)  it  is  to  be  measured  in  accordance 
with  the  rights  and  interests  which  it  objectively  violates  or 
jeopardizes.     There   is   no   impropriety   in   speaking   of    "  minor 

>  The  applicability  of  the  idea  of  damages  is.  in  si)ite  of  all  positivo 
law,  denied  by  Ed.  Hertz,  "Das  Unrecht  und  seinen  Formen",  I.  pp.  72 
el  seq.  But  Hertz's  argument  is  defective.  It  is  based  upon  a  confusion 
of  the  absolute  standpoint  Avith  the  standpoint  of  the  limited  human 
iniderstanding,  which  is  the  only  possible  one  for  the  criminal  law.  li<v 
garded  from  the  absolute  standpoint,  there  is  not  dangt-r  but  oidy  neces- 
sity. If  we  in  one  moment  knew  the  relation  of  everything,  then  no 
offenses  or  attempt  at  crime  could  deserve  l)lame.  But  from  the  i)rac- 
tical  human  standpoint  we  can  never  give  up  the  attitude  of  regarding 
things  according  to  their  physical  manifestatinns.  However,  in  this 
manifestation  of  our  thought,  which  from  the  al)stract  standpoint  may 
be  termed  lack  of  precision,  there  rests  also  the  possibility  of  gcm-ral  con- 
ceptions which  is  the  condition  of  all  progress.  If  one  apply  the  abstract 
standard,  animals  think  with  more  precision  than  m<'n,  since  they  sub- 
stantially consider  only  individual  pliysical  manifestation,  — and  for  tliis 
reason  they  make  no  progress.  Tliis  obji't-tion  «-an  l»e  advain-ed  against 
Hertz  more  fittingly  tiian  against  Biiuliiig  and  liis  theory  of  intenlrjx'nd- 
ence  of  causes.  Ih^rtz's  criticism  of  Bitubiig,  who  ri'jccts  tin-  idea  of 
being  guided  by  pliysical  manifestation  and  tlicrcfore  speaks  of  tho 
"equality  in  importance  of  the  conditions  of  a  manifestation  of  a  result", 
is  in  every  respect  correct. 

525 


§  109]  APPENDIX 

transfircssions."  "Trivial"  and  "malicious"  are  not  terms 
which  in  the  concrete  case  are  mutually  exclusive.  But  if  some- 
thing is  objectively  quite  trivial  and  entirely  without  danger,  then 
it  would  be  absolutely  improper  to  put  into  motion  the  clumsy 
machinery  of  criminal  justice  which  entails  such  heavy  expense 
for  the  country.  This  is  apparent  from  what  has  been  stated  in 
regard  to  the  determination  by  the  State  of  what  acts  are  punish- 
able. On  the  other  hand,  when  the  individual  is  dealing  with 
especially  important  rights  or  interests  of  others  or  of  the  com- 
munity, this  very  fact  in  its  purely  moral  aspect  should  serve  to  warn 
him  not  to  injure  unintentionally  such  rights  and  interests  and 
also  to  exercise  caution.  As  a  matter  of  fact,  the  punishment  of 
injuries  caused  by  negligence  is  thus  to  a  certain  extent  justified. 

But  only  to  a  certain  and  limited  extent.  On  the  one  hand,  the 
rights  and  interests  wdiich  are  concerned  must  be  of  especial  im- 
portance, and  on  the  other,  these  rights  and  interests  must  be  such 
that  the  fact  of  their  being  jeopardized  must  be  easy  to  per- 
ceive in  concrete  cases.  By  way  of  illustration,  the  general  in- 
terests of  the  State  are  certainly  important,  but  the  fact  of  their 
being  actually  jeopardized  is  not  easily  recognizable,  or  in  concrete 
cases  may  give  rise  to  very  diverse  opinions.  Therefore  the  offense 
of  high  treason  or  State  treason  by  negligent  action  would  be  a 
juristic  monstrosity,  though  it  is  quite  natural  and  proper  to 
punish  homicide  caused  by  negligence.  However,  one  can  assent 
to  Hegel's  view  that  intentional  acts,  in  which  the  result  in  question 
is  intended,  are  those  which  constitute  the  major  portion  of  crimes, 
and  that  in  private  law  the  question  of  guilt  occupies  a  very  sub- 
ordinate position.  Private  law  is  the  law  as  external  regulation ; 
criminal  law  is  the  law  as  morality.  But  as  criminal  law  does  not 
limit  itself  to  the  intention,  but  also  takes  into  consideration  the 
external  effect  of  the  act,  so  to  a  certain  extent  the  private  law  pro- 
ceeds more  leniently  with  him  who  is  innocent  than  with  him 
whose  guilt  or  malice  can  be  proven.  Criminal  justice  viust  use 
guilty  intention  as  a  foundation,  but  private  law  does  not 
require  it." 

Hälschner's  Distinction.  —  Hälschner's  distinction  is  even  less 
tenable  than  that  of  Hegel.^  According  to  Hälschner,  crime  should 
be  an  attack  upon  the  general  legal  system,  a  violation  of  law  in 

2  C/.  Von  Bar,  "Grundlagen  des  Strafreehts",  p.  44. 

^  "Die  Lehre  vom  Unrechte  und  seinen  verschiedenen  Formen"  in 
"Geriehtssaal"  (1869),  pp.  1-36,  81-114  (also  published  separately).  To 
the  contrary  c/.  Merkel,  "Zeitschrift"  (1881),  pp.  586  et  seq. 

526 


APPENDIX  (§  109 

principle,  while  a  tort  is  merely  a  violation  of  a  concrete  ri<;ht, 
the  law  as  a  principle  being  recognized.'  But  this  concei)ti()ii  is 
undoubtedly  incorrect  in  the  vast  majority  of  cases,  from  the 
standpoint  of  the  one  committing  the  act.  The  thief  in  steaHiig 
does  not  absolutely  reject  the  right  of  property  ;  '  on  the  i-outrary, 
he  desires  to  be  the  owner  or  at  least  to  actually  occupy  the  posi- 
tion of  the  owner.  What  he  rejects,  from  his  standpoint,  is  merely 
the  concrete  right  of  the  party  whose  property  is  stolen.  To  be 
sure,  the  objective  law  regards  the  theft  as  in  principle  irreconcilable 
with  the  theory  of  ownership.  Yet  as  a  matter  of  fact  this  also 
applies  to  other  violations  of  property  which  are  not  punished. 

Hälschner  in  the  beginning  had  a  conception  different  from  his 
later  one  as  to  this  antagonism  of  the  intention  towards  the  law 
in  crimes  and  the  absence  of  this  antagonism  in  torts. ''•  In  the 
beginning  he  laid  emphasis  upon  torts  having  to  do  only  with 
property  rights  that  might  be  renounced,  and  only  becoming 
punishable  wrong  if  the  will  of  the  injured  party  has  expressed 
itself  against  the  act ;  later  he  laid  emphasis  upon  the  intention  of 
the  wrongdoer  in  cases  of  private  wrong  not  being  permnnrntljf 
at  variance  with  the  law.  But  this  coloring  does  not  add  to  the 
correctness  of  this  shadowy  distinction.  As  Binding  "  has  correctly 
shown,  a  tort  is  not  changed  into  a  crime  by  the  declaration  t)f  the 
party  injured.  The  assumption  that  the  criminal  is  permanently 
opposed  to  the  law  is  no  better  than  the  false  presumption  of  Grol- 
mann's  "  special  prevention  "  theory. 

Hälschner's  distinction  is  neither  in  harmony  with  the  positive 
law  nor  capable  of  serving  a  useful  purpose.  By  way  of  illustration, 
suppose  that  a  legislative  assembly  desired  to  decide,  in  accordance 
with  Hälschner's  theory,  some  concrete  question  of  legislation, 
e.g.  the  punishment  of  usury  or  of  breach  of  contract.  Nothing 
definite  would  be  furnished.  Of  greater  practical  value  is  that 
version  of  his  view  which  Hälschner  gives  as  something  incidental, 
to  wit:   that  private  wrong  represents  merely  a  negative  rchitioii. 

^  Stahl,  "Die  Philosophie  des  Rechts",  11,  2,  §  IS."),  had  already  ad- 
vanced a  similar  view,  —  acts  whicli  violate  the  legal  system  are  crimes 
only  if  they  ehallenfre  tlie  authority  and  respect  due  to  the  State.  How- 
ever, Stahl's  conception  is  more  (rue  to  life  and  its  results  are  more  readily 
perceived.  In  the  empiuisis  wliicii  lie  lays  upon  the  positirr  nature  of 
crime,  his  insistence  that  the  act  must  manifest  itself  '"in  thesi"  (thus 
under  all  circumstances)  as  contrary  to  law,  tiiere  lies  the  principle  that 
crimes  must  be  readily  distinjruisliai)le  from  acts  that  are  not  j)unishable. 

^  Cf.  also  "Das  }r(>meine  deutsche  Strafreeht".  I,  pp.  A'-i  <l  .scr/. 

8  "Gerichtssaal"  (1S7()),  pp.  401  d  .sn/.,  especially  p.  417. 

'  "Normen",  I,  pp.  154  cl  sc(j. 

527 


§  109]  APPENDIX 

while  crime  represents  a  positive  attack  upon  the  law.  But 
taken  in  a  strict  and  precise  sense  this  principle  is  also  incorrect ; 
for  mere  absence  of  action  may  well  constitute  a  crime.  But  it 
is  admissible  in  the  sense  that  an  act  which  is  to  be  punished  must 
be  distinguishable  by  definite,  readily  determined  and  compre- 
hensible characteristics  from  those  acts  which  the  law  does  not 
punish;  and  it  must,  as  it  were,  be  given  "  positive  "  expression 
in  contrast  to  the  permissible  acts  of  every  day  life.  It  is  only 
as  thus  conceived  that  this  criterion  leads  to  expedient  and  realistic 
results.^  Yet  Hälschner  ^  rejected  it  with  the  statement  that  its 
results  were  not  sufficiently  solid  and  perceptible. 

Merkel's  Distinction.  —  Merkel  ^°  is  certainly  correct  when  he 
asserts  that  criminal  punishment  is  necessary  only  where  the  civil 
sanction  is  not  sufficient  for  the  repression  of  wrong.  But,  as 
shown  above,  the  premises  upon  which  he  argues  are  defective 
in  that  he  declares  the  sanctions  of  the  civil  and  criminal  law  to 
be  similar  in  character  and  different  only  in  degree  or  intensity. 
On  the  other  hand,  Binding  ^^  is  correct  in  his  statement  that  the 
positive  law  deals  with  civil  damages  and  with  criminal  punish- 
ment in  accordance  with  totally  distinct  principles.  Punish- 
ment would  affect  the  guilty  and  only  the  guilty;  civil  damages 
would  restore  to  the  injured  party  that  of  which  he  has  been  de- 
prived. It  is  possible  only  by  the  most  artificial  reasoning  to 
maintain  that  the  obligation  to  pay  damages  should  never  affect 
any  but  actually  guilty  parties.  The  so-called  "  Liability  Law  " 
("  Haftpflichtgesetz  ")  of  June  7,  1871,  for  the  German  Empire, 
was  a  complete  contravention  of  this  theory.  In  English  law  there 
is  given  wide  recognition  to  a  liability  (at  least  a  secondary  li- 
ability) for  obligations  {i.e.  in  tort)  incurred  by  agents  (e.g.  the 
master  for  his  servants,  etc.).  INIerely  to  raise  one  further  point, 
how  does  Merkel's  theory  explain  that  punishment  does  not,  but 
obligation  to  pay  damages  does,  pass  to  one's  heirs  ? 

Relation  of  Tort  and  Crime.  —  ]\Ioreover,  one  may  not,  as 
Binding  has  done,  draw  the  general  conclusion  that  the  distinction 
between  tort  and  crime  is  purely  a  creation  of  positive  law,  — 

*  Von  Bar,  "Grundlagen  des  Strafrechts",  pp.  50  et  seq.  In  respect 
to  the  real  grounds  of  distinction  for  law  and  legislation,  it  is  -with  pleas- 
ure that  I  find  myself  in  harmony  with  the  frequently  cited  recent  articles 
of  Meyer  and  Merkel.  Cf.  especially  the  annotation,  Hugo  Meyer  in 
"Gerichtssaal",  Vol.  33,  p.  105. 

"  "Das  gemeine  deutsehe  Strafrecht",  p.  15. 

1"  " Criminalistische  Abhandlungen",  I,  pp.  57  et  seq. 

"  "Normen",  I,  pp.  166  et  seq. 

528 


APPENDIX  [§  109 

that  there  is  no  fixed  principle  nor  even  a  general  basis  for  this 
distinction,  and  that  every  crime  contains  the  essential  element 
of  tort.  However,  every  wrong,  even  the  most  insignificant, 
entailing  only  a  civil  sanction,  contains  one  element  which  might 
possibly  qualify  it  as  a  crime,  although  often  only  one :  and  Merkel 
is  really  correct  to  the  extent  that  m  certain  cases  the  obligation 
to  pay  damages  can  tend  towards  the  repression  of  wrong,  just  as 
punishment.^-  The  legislator  who  would  subject  every  wrong 
to  criminal  punishment  would  work  a  hardship  upon  humanity 
and  do  violence  to  his  own  authority.  Such  freedom  of  action 
and  omnipotence  do  not  belong  to  him.  Where  gentler  means 
would  accomplish  the  same  end,  the  legislator  commits  a  grave 
wrong  by  inflicting  punishment.  Therefore  it  is  absolutely  correct 
to  say  that  where  the  civil  sanction  is  sufficient,  there  is  no  meaning 
in  punishment. 

This  is  the  only  occasion  where  from  our  standpoint  it  is  neces- 
sary to  investigate  the  relation  of  tort  and  crime.  We  have  not 
derived  punishment  from  the  law  but  directly  from  the  principle  of 
morality.  The  problem  why  at  one  time  the  legal  princijile  as- 
sumes the  form  of  punishment  and  later  assumes  the  form  of  the 
civil  sanction  is  for  us  not  a  real  problem.  The  condition  is  simply 
this.  Because  of  the  existence  of  surer  civil  justice,  many  wrongful 
and  therefore  immoral  acts  lose  much  of  their  dangerous  character. 
This  explains  why  in  the  earlier  stages  of  legal  de\elopment  many 
acts  and  also  especially  many  omissions  are  punished,  for  which 
later  civil  sanctions  alone  are  found  sufficient.  Such,  for  exami)le, 
in  the  development  of  the  Germanic  law,  was  the  case  with  simple 
breach  of  contract.^^  "  As  the  idea  of  law  grows,  punishments 
decrease  ;  profusion  of  methods  of  punishment  stands  in  an  inverse 
ratio  to  the  perfection  of  the  legal  system  and  the  maturity  of  the 
people."  "     But  the  sanction  of  civil  justice  is  by  no  means  uni- 

12  It  must  be  admitted,  however,  that  a  striet  olilifratidn  to  make  in- 
demnity can  exercise  a  deterring  and  disciplinary  inthieiice.     CJ.  /^/"A". 
"Die  Ermittlung  des    Sachverhalts    im    französischen    Civilprocesse'",    I 
(1860),  pp.  ."j91  el  seq.;    Von  Bar,  "Recht  und  Beweis  im  Civilprocesse 
(18(37),  pp.  24  el  seq.  ,        ,.   ,r  .    r 

"  Cf.  R.  Löning,  "Der  Vertragsbruch  und  seine  Rechtsfolgen  .  Vol.  1 
(1876),  and  W.  Sickel,  "Die  Bestrafung  des  Vertragsbruch  und  analoger 
.Rechtsverletzunger  in  Deutschland"  (1S76).  Tlicse  writers,  liowever, 
with  the  characteristic  predilection  of  authors  for  tlie  object  of  th««ir  in- 
vestigations, seem  to  regard  the  reintroduction  of  such  legal  rules  as 
desirable.  .  i      " 

'^  Von  Ihering,  "Das  Schuldmoment  im  römischen  Privatrechte    .  p. 
67. 

529 


§  101)1  APPENDIX 

versally  sufficient  as  moral  reprobation,  although  perhaps  it  is  so 
at  various  times  and  in  certain  cases.  For,  as  we  have  seen,  this 
sanction  also  takes  place  where  there  is  a  violation  of  rights  that 
are  purely  objective  and  devoid  of  guilt.  With  this  assumption, 
(which  harmonizes  with  the  customary  method  of  expression, ^'^j  of 
a  possibly  guiltless  violation  of  right  it  must  be  noted  by  way  of 
contrast  civil  sanction  must  also  occur  for  the  acts  of  irrational 
beings.  Merkel  expresses  this  radically  in  the  following  manner : 
According  to  this  conception,  it  is  only  their  insolvency  which 
prevents  us  from  declaring  that  the  very  mice  who  waste  our  crop 
are  bound  to  render  indemnity.  But  we  do  not  exercise  civil  justice 
against  the  mice  because  they,  as  contrasted  to  ourselves,  are 
not  possessors  of  rights  and  they  cannot  be  said  to  be  under  the 
protection  enjoyed  by  the  possessor  of  rights.  Therefore  we  main- 
tain our  right  to  use  such  methods  as  may  seem  agreeable  to  us, 
without  any  judicial  decree.  On  the  other  hand,  if  we  were  dealing 
with  a  possessor  of  rights  who  was  incapable  of  intention,  e.g.  with 
one  wdio  is  irresponsible  for  his  actions,  it  is  the  respect  for  this 
possessor  of  rights  (or,  otherwise  expressed,  the  possibility  of  an 
injury  of  this  possessor,  and  thus  of  his  sphere  of  rights,  being 
contrary  to  law),  which  is  the  basis  of  the  prohibition  of  unlimited 
self-redress. 

It  is  more  in  accord  with  actual  relations,  if  one  place  the  nature 
and  purpose  of  private  justice  simply  in  the  adjustment  and  ar- 
rangement of  the  actual  or  alleged  confusion  of  the  spheres  of 
rights  of  two  or  more  possessors  of  rights.  While  the  element  of 
guilt  is  of  very  considerable  importance  in  private  law,  yet  it 
plays  only  a  secondary  part.  It  is  only  by  an  artificial  and  there- 
fore defective  argument  that  the  duty  to  indemnify  is  based 
upon  guilt.  Especially  is  this  true  of  the  Roman  Law.  Even 
less  does  this  hold  good  in  other  positive  laws,  e.g.  the  French 
or  the  English. ^^  It  is  at  least  not  an  absolute  injustice  for 
the  law  to  make  one,  who  is  legally  and  financially  responsi- 
ble, pay  for  material  damage  which  he  has  caused,^ '^  and  the 

*5  Thon,  "Rechtsnorm",  pp.  84  et  seq.,  in  this  respect  pronounces  him- 
self in  accord  with  Von  Ihering,  pp.  5  and  6. 

1^  As  to  this,  (•/.  Von  Bar  in  Grünhufs  "Zeitschrift  für  das  Privat-  und 
öffentliche  Recht  der  Gegenwart"  (1877),  pp.  74  et  seq.,  and  e.g.  "Code 
civil.",  §  1385:  "Le  proprietaire  d'un  animal  ou  celui  qui  s'en  sert  pen-, 
dant  qu'il  est  ä  son  usage,  est  responsable  du  dommage  que  l'animal  a 
cause,  soit  que  l'animal  füt  sous  sa  garde,  soit  qu'il  füt  egare  ou  echappe", 
and  Pfaff,  "Zur  Lehre  vom  Schadenersatz  .  .  .  nach  osterr.  R."  (1880). 

"  Concerning  this,  cf.  Thon,  "Rechtsnorm",  p.  106.     CJ.  also  Unger, 
in  Grünhut's  "Zeitschrift"  (1881),  pp.  209  et  seq. 

530 


APPENDIX  [§  109 

older  Germanic  law/^  as  is  well  known,  attached  liability  in  this 
manner. 

Since  the  element  of  guilt  takes  a  subordinate  position  in  private 
law,  the  latter  by  itself  is  not  suited  to  preserve  the  recjuisite  moral 
character  of  the  law.  A  relation  which,  upon  the  whole,  is  morally 
indifferent  (although  there  may  be  inijjortant  modifications  in 
individual  cases  conditional  e.g.  upon  "  bona  fides  "  or  "  mala 
fides  ")  is  treated  the  same  as  an  act  contrary  to  morality.  He 
who  unlawfully  detains  must  surrender  the  object,  whether  he 
possess  it  "  mala  fides  "  or  "  bona  fides."  It  is  not  the  object  of 
the  civil  sanction  to  strike  at  that  which  is  morally  reprehensible, 
or  to  reprove  it.  It  is  rather  that  its  primary  object  is  to  eliminate 
the  objective  illegality,  be  its  source  what  it  may.  It  is  merely  a 
secondary  matter  that  the  civil  sanction  deals  more  gently  with 
him  who  has  done  nothing  immoral,  e.g.  where  one  bona  fide 
has  acquired  an  object  belonging  to  another.  The  reaction  of 
the  civil  law  against  wrong  which  contains  the  element  of  guilt 
is  one  which  in  many  cases  can  be  perceived  with  difficulty  and  is 
exceedingly  obscure. 

Crime  distinguished  from  Tort.  —  In  conclusion,  our  view  avoids 
the  difficulty  arising  on  one  hand  from  the  fact  that  the  same  act, 
e.g.  injury  to  a  person  or  thing,  may  under  some  circumstances 
entail  results  both  in  private  and  in  criminal  law,  and  on  the  other 
from  there  being  acts  which  are  punishable  criminally  but  for  which 
no  result  in  private  law  ensues,  e.g.  criminal  acts  for  which  a  civil 
remedy  is  excluded  by  the  maxim  :  "  \'olenti  non  fit  injuria." 
According  to  our  conception,  an  act  is  in  principle  punishable  not 
because  it  violates  a  subjective  right,  but  rather  because  it  is  con- 
trary to  morality.  It  maintains  a  relationship  to  subjective  right 
only  through  the  fact  that  the  State  for  the  most  part  prosecutes  or 
subjects  to  moral  reprobation  only  those  acts  which  are  immoral 
because  they  violate  or  jeopardize  subjective  right.     lle\ssler  ''•* 

18  Cf.  "Sächsisches  Landrecht",  II,  ().">,  §  1.  Ill,  ;i. 

^''''Das  Civilunrecht  und  sein(>  Folgen"  (Wien,  1S70).  Ifii/sslrr,  p. 
15,  correctly  says:  "The  essential  ("lenient  in  tort  is  tiu-  material  injury 
to  a  material  legal  condition.  Without  this  there  is  no  tort.  Intention 
has  according  to  this  conception  m(>rely  an  incidental  (qualifying)  sig- 
nificance. The  essential  (>lement  in  crime  is  guilt.  —  the  tracing  of  tlu> 
act  to  the  will  as  its  original  source.  Witliout  tliis  there  is  no  crime." 
This  had  previously  ("Grundlagen",  p.  44)  heen  stated  hy  me,  and  further- 
more I  maintained  that  criminal  justice  must  use  (he  guilty  will  as  a 
foundation,  while  civil  justice  does  not  require  it  (l)Ut  under  some  cir- 
cumstances it  may).  The  criticism  made  by  Hiysslrr,  p.  11,  not«-  <1  upon 
my  "Grundlagen  des  Strafrechts "  tiiat  it  was  to  bo  distiuguislu-d  from 

531 


§  1091  APPENDIX 

and  ßiiulins  -°  are  thus  quite  correet  in  seeking  to  eliminate 
guilt  from  the  private  law  based  on  the  obligation  to  indemnify, 
so  as  to  treat  this  excluded  element  of  unlawful  action  as  the 
foundation  of  amenability  to  punishment.  Both  writers  have 
the  possibility  of  the  correct  view.  This  is  so  in  respect  to 
Heyssler,  since  he  will  not  acknowledge  for  the  distinction  between 
private  wrong  and  punishable  wrong  the  basis  of  expediency  but 
rather  prefers  aprioristic  and  abstract  distinguishing  charac- 
teristics.^^ Binding  believes  that  guilt  may  })e  established  ex- 
clusively as  an  element  of  an  offense  and  not  as  a  possible  basis 
of  a  duty  to  indemnify.  On  one  hand,  the  aprioristic  basis  ad- 
vanced by  Heyssler  is  not  satisfactory,  and  on  the  other  hand 
})rivate  wrong  is  too  narrowly  conceived  as  a  consequence  of  human 
action.  But  in  respect  to  its  effect  the  conception  of  action  (i.e.  as 
of  operation  in  the  external  world)  can  not  be  separated  from  the 
conception  of  guilt.  So  Heyssler  finally  becomes  involved  in  the 
contradictory  and  completely  incomprehensible  maxim :  "  Guilt 
for  which  one  is  responsible  is  an  offense,  guilty  private  WTong  is 
wrong  possessing  guilt,  but  not  guilt  for  which  one  is  responsible."  " 
Binding,  on  the  contrary,  while  he  maintains  that  private  law 
has  nothing  to  do  with  guilt,  arrives  at  the  strange  principle  that 
the  private  law  duty  of  indemnification  has  its  basis  in  a  quasi- 
contract,  a  negligent  or  fraudulent  "  negotiorum  gestio."  -^  A 
simple,  unartificial  and  correct  opinion  would  say  that  the  duty  to 
indemnify  in  a  private  wTong,  e.g.  in  a  personal  injury  caused  by 
negligence  -^  that  is  perhaps  not  punishable,  arises  without  regard 

that  quoted  above  only  upon  close  observation  because  it  belongs  to  those 
theories,  which  "merely  furnish  personal  satisfaction  to  their  author", 
does  not  seem  to  have  been  avoided  by  Heyssler  himself.  A  more  recent 
attack  bv  Hevssler  upon  Binding's  theory  {Griinhufs  "Zeitschrift  für  das 
Privat-  imd  öflfenthche  Recht"  (1879),  pp.  357  et  seq.)  may  upon  the 
whole  be  concurred  in. 

20  "Normen",  I,  pp.  142  et  seq.,  172  et  seq. 

-'■  This  was  done  for  the  civil  law  in  a  very  artificial  manner  in  "Be- 
streitbarkeit  der  rechtlichen  Qualification  der  That  und  Xegativität  des 
rechtswidrigen  Thatbestandes",  pp.  22  et  seq.,  and  thereby  (without  any 
proof)  it  was  asserted  that  all  development  of  civilization  of  the  present 
time  rested  upon  this  basis. 

22  Cf.  in  opposition  to  this  complete  contradiction,  Binding,  "Nor- 
men", I,  p.  233,  and  Hälschner,  p.  418. 

23  "Normen",  I,  pp.  222.  223.  Incidentally  Binding  desires  to  show 
that  what  I  stated  in  my  "Grundlagen  des  Strafrechts"  pp.  41,  42  as  to 
"Schadensersatz"  and  "Schadenstragung",  which  he  so  haltingly  con- 
demned, corresponds  with  what  he  on  page  227  said  as  to  "  Sehadenstra- 
gimg."     Here  even  the  words  are  identical. 

-*  Hälschner,  in  opposition  to  Binding,  observes  that  the  latter's 
quasi-contract  theory  contains  a  contradiction  scarcely  less  marked  than 

532 


APPENDIX  [§  109 

to  the  concrete  intention  or  generally  against  the  concrete  inten- 
tion of  the  party  bound  to  indemnify,  just  as  punishment  attaches 
itself  in  punishable  wrong  without  regard  to  the  intention  of  him 
who  commits  the  wrong.  But  this  last  problem,  the  derivation  of 
the  duty  to  indemnify  from  guilt,  exists,  as  previously  stated,  only 
for  a  theory  which  rejects  the  direct  derivation  of  criminal  law  from 
morality  and  therefore,  for  good  or  evil,  must  found  the  cixil  sanc- 
tion at  the  beginning  of  the  investigation,  since  it  conceives  punish- 
able wrong  as  "  injury  of  legal  rights."  In  a  theory  which  founds 
criminal  law  directly  upon  morality,  the  ci\'il  sanction  receives 
attention  simply  as  a  "  factum  ",  a  "  factum  "  which  may  have 
the  possible  consequence  that  the  State  may  omit  punishment. 

§  110.  Violations  of  Police  Reflations.  The  Three  Types.  — 
It  yet  remains  to  explain  from  our  standpoint  the  so-called  "  police 
offenses  "  {i.e.  violations  of  police  regulations).  This  is  a  simple 
matter.  We  previously  stated  that  not  only  the  actual  damaging 
but  also  even  the  placing  in  jeopardy  of  an  object  of  a  right  or  of  a 
legal  relation,  could  constitute  an  immoral  act  amenable  to  the 
criminal  law.  Now  it  is  quite  possible  that  this  placing  in  jeopardy 
of  a  right  is  not  that  which  is  foremost  in  the  mind  of  the  party 
committing  the  act.  He  may  be  aiming  at  some  ulterior  result 
or  course  of  action.  Nevertheless  in  most  or  many  of  the  cases  his 
conduct  involves  danger,  e.g.  smoking  a  cigar  in  the  vicinity  of 
explosives  entails  danger  of  an  explosion.  This  must  be  realized 
by  the  individual  himself  upon  more  careful  consideration.  There- 
fore it  involves  an  endangering  (of  others  or  their  rights)  by 
negligence ;  and  this  can  always  be  characterized  as  an  immoral 
act  (although  of  minor  degree),  and  thus  with  complete  justice 
subjected  to  punishment.     To  be  sure,  as  a  general  rule,  in  such 

does  Heyssler's  principle  stated  above,  since  according  to  Binding  the 
same  act  is  viewed  by  the  civil  judge  as  a  lawful  act  giving  rise  to  a  legal 
obligation  and  is  viewed  by  the  criminal  judge  as  an  act  contrary  to  law 
and  subject  to  punishment.  But  Hälschner,  whose  latest  treatise  is  very 
decidedly  influenced  by  the  "Xormcntheorie"  ("Gem.  deutsches  Straf- 
recht", p.  21),  founds  the  obligation  to  pay  damages  in  a  manner  not 
differing  \videly  from  a  quasi-contract,  since  he  sees  in  the  injury  of  an- 
other {i.e.  of  his  property)  a  "permit  to  make  use  of  one's  own  property." 
Naturally  Hälschner  provides  that  the  one  doing  tlie  injury  is  not  required 
to  have  this  intention  "in  concreto."  But  the  law  attributes  to  his  act 
the  "equivalent"  of  such  an  intention.  More  simply  stated  the  principle 
is  that  the  law,  since  it  does  not  pay  attention  to  the  actual  intention, 
compulsorily  attaches  to  the  act  the  result  that  compensation  must  bo 
rendered.  Hälschner  here  simply  repeats  the  old  error  tliat  the  thing 
which  (on  other  grounds)  is  reasonable  is  always  desired  by  the  party 
suffering  thereby.  According  to  this  logic,  the  individual  condemned  to 
death  always  desires  to  be  executed. 

533 


§  llOj  APPENDIX 

cases  the  authorities  should  have  designated  tlie  act  in  question  as 
possessing  this  dangerous  character.  The  immoral  nature  of  the 
:act  is  so  remote  that  it  should  be  expressly  so  declared  to  the  in- 
dividual. 

Furthermore,  it  is  necessary  to  a  certain  extent  and  under  certain 
conditions  that  the  individual  make  some  sacrifices  in  the  interests 
of  the  public  at  large,  i.e.  that  there  be  some  positive  contribution 
on  his  part.  If  this  performance  is  not  rendered  as  due,  then  this 
constitutes  an  immoral  act,  pro^'i(le(l  however,  that  the  necessity 
of  such  a  special  performance  should  have  been  clearly  announced, 
i.e.  that  it  be  determined  by  the  authorities  to  whom  the  com- 
munity has  entrusted  the  maintenance  of  such  general   interests. 

In  conclusion,  it  is  possible  that,  because  of  their  very  insignifi- 
cance, actual  violations  of  right  assume  a  different  character. 
There  is  something  dift'erent  in  unlawfully  picking  up  an  apple 
and  eating  it  and  in  stealing  a  gold  coin.  The  smallest  violation 
of  a  right  is  also  an  immoral  act ;  but  to  a  certain  extent  it  can 
be  placed  on  a  plane  with  those  acts  whose  immorality,  as  shown 
above,  only  becomes  manifest  in  some  more  indirect  manner. 

The  circle  of  the  so-called  "  violations  of  police  regulations  " 
("  Polizeivergehen  ")  may  be  closed  with  these  three  varieties, 
viz. :  actions  that  involve  danger  ;  the  not  doing  of  that  which  one 
is  bound  to  do  {e.g.  giving  information  or  a  report  to  the  authorities 
is  such  a  duty,  although  perhaps  not  one  upon  which  there  can  be 
placed  a  money  value) ;  and  violations  of  right  that  are  quite  in- 
significant. 

The  true  basis  of  the  propriety  of  punishment  here  lies  in  the 
immoral  character  of  the  act.  For  this  to  become  obvious,  one 
has  only  to  consider  that  the  preservation  of  a  certain  external 
good  order, ^  because  of  its  substantial  importance,  may  be  regarded 
as  the  equivalent  of  a  moral  principle.  For  it  is  upon  this  external 
order  that  well-ordered  human  intercourse  depends,  and  thus  it 
contributes  to  the  progress  and  development  of  humanity.  It 
may  indeed  appear  to  have  nothing  to  do  with  morality  whether 
one  goes  to  the  left  or  to  the  right  on  a  bridge.     Yet  on  account  of 

^  Many  excellent  remarks  as  to  this  are  contained  in  E.  Von  Hart- 
mattn's  "Phänomenologie  des  sittlichen  Bewusstseins",  pp.  485  et  seq.: 
*'Das  Moralprincip  der  Ordnung."  L.  Von  Stein,  "Verwaltungslehre" 
<1867),  IV,  p.  36,  says:  "If  that  which  the  pohee  regulation  provides  is 
an  actual  essential  for  the  development  of  the  public  at  large,  then  non- 
compliance with  the  same  by  the  individual  is  an  offense  against  the 
public  at  large." 

534 


APPENDIX  [§  110 

traffic  it  may  be  necessary  to  arrange  that  those  going  over  the 
bridge  from  either  end  keep  to  their  right,  and  the  violation  of 
such  a  provision  may  result  in  great  disaster.  Thus  it  is  improper, 
immoral,  not  to  comply  with  such  a  rule.  It  may  even  be  said 
that  to  a  certain  extent  the  authority,  as  such,  must  be  respected, 
even  if  its  commands  and  prohibitions  are  materially  injudicious. 
For  disobedience,  as  such,  readily  becomes  contagious,  and  the 
external  order  and  therefore  authority  itself  rests  upon  the  principle 
of  subordination.  Therefore  it  is  possible  that  disobedience  as 
such  can  justly  be  punishable. 

Relation  of  "  Violations  of  Police  Regulations  "  to  Crime.  — 
From  the  foregoing  it  is  apparent  that  "  a  priori  "  there  is  no  dis- 
tinction in  principle  between  criminal  offenses  and  "  violations  of 
police  regulations,"  just  as  historically  this  distinction  is  uncertain 
and  flexible.  It  reduces  itself  to  this,  viz. :  that  the  so-called  "  Po- 
lizeidelicte  "  bear  far  less  of  an  immoral  and  therefore  far  less  of 
a  punishable  character.  It  certainly  can  not  be  asserted  that  mere 
disobedience  to  commands  always  constitutes  merely  a  "  violation 
of  police  regulation  " ;  it  is  not  so  in  an  oriental  despotism  and 
even  with  ourselves,  disobedience  in  military  matters  is  quite  a 
grave  offense.  The  degree  of  immorality  varies  with  time  and 
circumstance.  There  are  many  actions  in  which  it  can  be  very 
d()ul)tful  whether  they  should  be  treated  as  crimes  or  as  "  viola- 
tions of  police  regulations."  ^ 

Since  the  propriety  of  punishment  for  "  violation  of  police  regu- 
lations ",  just  as  in  crimes,  is  based  upon  the  immorality  of  the  act, 
it  furthermore  comes  about  that  in  such  punishment,  just  as  in 
punishment  for  crimes,  there  must  be  guilt.  Purely  arbitrary 
punishment  of  individuals  ^  is  here  precluded,  and  when  it  does 
take  place  operates  just  as  in  criminal  offenses.  Consequently 
it  is  a  decided  step  in  advance  that  the  modern  development  of 
law  establishes  fundamental  general  principles  essentially  the 
same  for  "  violations  of  police  regulations  "  as  for  crimes,'  and  that 

-  Among  other  things,  §  .322  of  the  German  Criminal  Code  punishes 
the  kindHng  of  fires  on  beac^li-cHffs,  when  likely  to  endanger  navigation, 
with  penal  imprisonment  not  exceeding  ten  years,  thus  with  special 
criminal  punishments.  Cf.  also  e.g.  the  German  imperial  statute  of  May 
21st,  1878,  dealing  with  violations  of  prohibitions  enacted  for  the  preven- 
tion of  cattle  disease. 

^  E.q.  the  punishment  of  a  man  who  is  innocent  in  order  to  inspire 
the  public  with  terror. 

'' Thus  especially  the  German  Criminal  Code,  of  which  the  first  or 
general  part  generally  has  reference  to  all  ofifenses  against  police  regula- 
tions that  may  be  created. 

535 


§  11()|  APPENDIX 

the  former  are  committed  to  the  courts  and  to  those  officials  to 
whom  the  legal  protection  of  individuals  is,  for  the  most  part, 
entrusted.  Yet  the  individual  often  feels  a  punishment  is  of 
equal  severity  whether  it  be  inflicted  upon  him  as  a  criminal 
punishment  or  as  a  sanction  of  the  police  system.  And  so  it  is 
often  mere  sophistry  to  seek  an  exit  from  a  worn-out  theory  or  a 
view  which  does  not  have  the  courage  to  pronounce  itself  openly 
upon  the  liability  to  or  immunity  of  an  act  and  to  regard  a  judicious 
sanction  of  the  police  system  as  acceptable. 

An  act  which  is  not  amenable  to  the  criminal  law  because  it  is 
very  difficult  to  ascertain  or  because  its  injurious  effects  are  sub- 
stantially limited  to  its  own  author  is  no  more  punishable  as  a 
"  violation  of  police  regulation  "  than  as  a  crime. 

It  must  however  be  admitted  that  the  distinction  between 
"  violations  of  police  regulations  "  and  criminal  offenses  which  is 
not  "  a  priori  "  admissible,  has  a  very  great  importance  from  the 
standpoint  of  the  positive  law,  since  public  opinion  has  difficulty 
in  a  large  number  of  offenses  in  recognizing  their  immorality. 
It  does  not  refer  these  offenses  to  a  defect  in  character,  but  rather 
regards  them  as  something  which  can  now  and  then  happen  to 
any  one  without  in  any  way  disturbing  his  social  or  legal  position. 
The  legislator  who,  in  general,  should  give  expression  only  to  the 
moral  convictions  of  the  people  must  observe  this  distinction  ;  and 
doubtless  it  is  substantially  upon  this  that  there  exists,  in  positive 
law",  the  distinction  of  crime  and  "  violation  of  police  regulations."  "^ 

General  Characteristics  of  "  Violations  of  Police  Regulations." 
—  The  only  result  of  combining  crimes  and  "  violations  of  police 
regulations  "  would  be  to  create  confusion.  It  is  a  mistake  which 
modern  legislation  very  properly  avoids.  This  is  the  more  so 
since  acts  whose  immorality  is  recognized  only  after  considerable 
reflection,  and  possibly  known  only  because  of  the  pronouncement 
of  the  authorities,  are  not  in  a  class  with  those  w^hich  attack  the 
permanent   foundations   of   human   society.     The   permitting   or 

5  Thus,  offenses  in  this  classification  do  not  exactl.y  correspond  with 
the  so-called  "Polizeidelicte"  (violations  of  police  regulations),  because 
the  objective  severity  of  the  punishment  e.g.  the  amount  of  the  fine,  also 
exercises  an  influence  upon  the  form  of  the  procedure.  It  is  possible  also 
that  the  punishment  of  an  act  which  is  in  itself  so  little  or  only  indirectly 
immoral  must  be  rigorous  because  e. 17. the  profit  derived  from  the  offense 
or  its  likelihood  of  repetition  have  to  be  considered,  or  because  the  offense 
is  e.g.  as  a  rule  committed  only  by  well-to-do  persons.  There  may  be 
yet  another  reason,  an  act,  e.g.  duelling,  wliich  public  opinion  does  not 
regard  as  dishonorable,  must  be  punished  with  really  significant  punish- 
ments. 

536 


APPENDIX  [§  110 

prohibiting  of  sucli  acts  is  far  more  dependent  upon  transitory  cir- 
cumstances and  possibly  upon  purely  local  needs  and  conditions. 
These  are  facts  which  involv'e  quick  changes  in  the  law.  The  more 
indispensable  and  stable  portion  of  the  criminal  law  must  be 
separated  from  that  which  is  less  requisite  and  more  subject  to 
change.  Since  the  immorality  of  "  violations  of  police  regula- 
tions "  is  only  an  indirect  one,  the  repression  in  such  cases  must  be 
milder.  Severe  penalties  must  not  be  applied,  and  especially  not 
penalties  which  affect  honor.  Such  penalties  would  confuse  the 
minds  of  the  people  and  especially  would  readily  give  the  impression 
that  law  rests  a  great  deal  upon  changing  and  even  arbitrary  com- 
mands and  prohibitions.  The  lightness  of  the  penalties  also  leads 
to  the  propriety  and  indeed  the  practical  necessity  of  a  simpler 
procedure.  Procedure  as  a  means  must  always  maintain  a  certain 
relation  to  its  end,  punishment.  A  trial  which  could  have  as  its 
conclusion  nothing  more  than  a  sentence  to  pay  a  few  marks  as  a 
fine,  but  which  had  all  the  machinery  which  is  occasioned  by  a 
trial  for  murder,  would  be  a  monstrosity,  which  could  only  tend 
to  lessen  the  effect  of  criminal  proceedings  that  are  actually  im- 
portant. The  fact  that  the  procedm-e  is  less  thorough  makes  it 
more  possible  for  an  innocent  man  to  be  convicted  in  trials  for 
"  violations  of  police  regulations  "  than  in  trials  for  crime.  The 
lesser  importance  of  the  cases  also  makes  it  conceivable  that  each 
and  every  minor  "  violation  of  police  regulations  "  is  not  investi- 
gated with  the  utmost  rigor.  The  legislator  even  finds  that  he  is 
impelled  to  make  no  distinction  between  transgressions  that  are 
intentional  and  those  occasioned  by  negligence,  since  the  result 
would  not  justify  a  \-ery  precise  in\'estigation.  He  may  also 
possibly  feel  impelled  to  allow  the  punishment  to  be  imposed  upon 
a  party  only  presumed  to  be  guilty,  e.g.  the  owner  or  possessor  of 
a  piece  of  land. 

It  is  therefore  not  difficult  to  criticize  the  variant  views  as  to 
the  nature  of  "  violations  against  police  regulations." 

There  is  hardly  a  material  dift'erence  between  the  view  of  Hugo 
iMeyer  and  the  view  here  represented.  He  says :  "  The  true  dis- 
tinction between  the  two  kinds  of  punishable  wrong  lies  in  this. 
The  *  violation  of  police  regulations  '  injures  the  useful  elements  of 
the  legal  system,  while  crime  injures  the  necessary  elements. 
But  as  the  conceptions  of  usefulness  and  necessity  overlap,  so 
there  are  many  kinds  of  oft'enses  as  to  which  one  can  only  conjcH-ture 
whether  they  belong  to  the  province  of  crimes  or  should  be  included 

537 


§  llü)  APPENDIX 

among  '  xiolatloiis  of  police  regulations.'  "  The  permanent  ami 
more  unchanging  fundamental  rules  of  human  society  are  also 
the  necessary  rules  and  the  temporary  or  less  permanent  or  those 
exhibiting  greater  local  difi'erences  are  merely  the  useful  rules.'' 

On  the  other  hand,  other  opinions  incorrectly  emphasize  some 
element  as  being  exclusively  the  distinguishing  one.  Thus,  the 
older  view,  represented  especially  by  Feuerbach,  regarded  a  crime 
as  being  only  that  which  violates  a  subjective  right.  This  distin- 
guishes, as  it  were,  the  core  of  the  matter,  but  a  very  considerable 
margin  extends  on  each  side.  This  also  applies  to  the  view  ^ 
which  regards  crime  as  a  violation  of  a  right  and  "  violation  of 
police  regulations  "  as  an  endangering  of  a  right.  And  the  same 
may  be  said  of  the  view  which  conceives  a  crime  as  a  substantial 
and  a  "  violation  of  police  regulations  "  as  merely  a  formal  wrong.^ 
This  last  view  gives  too  much  prominence  to  that  element  of 
obedience  to  an  external  formal  order,  to  the  authorities.  To 
this  element  we  also  have  given  some  consideration. 

But  we  must  absolutely  dissent  from  the  distinction  of  that 
later  view  which  finds  in  "violations  of  police  regulation",  not 
punishment  in  its  proper  sense,  but  rather  "  discipline."  ^  The 
individual  should  be  disciplined  by  the  punishment  for  the  viola- 
tion just  as  little  (or  just  as  much,  if  one  prefers  this  last  expression) 

^  I  would  remark  that  I  do  not  entirely  believe  that  legislation  should 
exclusively  distinguish  offenses  according  to  their  gravity,  i.e.  according 
to  the  gravity  of  their  punishments.  At  least  the  jurisdiction  of  those 
administering  the  criminal  law  should  not  be  determined  solely  by  the 
amount  of  the  penalty,  but  also  with  consideration  for  the  moral  sig- 
nificance of  the  offense.     Cf.  "Grundlagen",  p.  31. 

^  Thus  Grolmann,  "Lehrbuch",  §  365.  Cf.  also  Seeger  in  Goltdammer, 
"Archiv"  (1870),  p.  245.  Köstlin's  view  ("System  des  deutsehen  straf- 
rechts,"  1855,  §  18)  that  a  criminal  offense  is  an  actual  wrong,  and  a 
"  polizeideUct "  is  a  possible  wrong,  is  only  an  inapt  expression  of  this 
view.  It  would  at  all  events  be  more  correct,  as  Fichte  says  ("Natur- 
recht",  p.  294),  for  police  laws  to  prohibit  possible  violations  of  the  rights 
of  others  and  for  the  civil  laws  to  prohibit  actual  vdolations. 

*  Thus  e.g.  Merkel,  "Abhandlungen",  I,  pp.  95  et  seq.;  Binding, 
"Normen",  I,  pp.  179  et  seq.,  pp.  205  et  seq.  (who  designates  an  offense 
punishable  by  the  police  authorities  as  purely  disobedience).  In  agree- 
ment with  Binding  is  also  Hälschner,  "Das  gemeine  deutsche  Strafrecht", 
I,  p.  35,  and  earlier  "System  des  preuss.  Strafrechts",  I,  p.  2 ;  "Gerichts- 
saal", (1876),  p.  429. 

3  Thus  in  a  peculiar  manner  Hälschner,  "Gem.  deutsches  Strafrecht", 
I.  p.  37,  where  it  is  said  that  punishment  inflicted  by  the  police  authorities 
should  serve  as  a  warning  to  the  party  punished.  Should  this  not  also 
be  the  case  with  criminal  punishments?  Admonition  to  discretion  and 
obedience  are  certainly  not  the  exclusive  pro^dnce  of  punishments  in- 
flicted by  the  police  authorities.  It  is  sufficient  to  consider  on  one  hand 
offenses  occasioned  by  negligence,  and  on  the  other  hand  resistance  of 
officials. 

538 


APPENDIX  [§110 

as  by  the  criminal  punishment ;  less  perhaps,  if  one  considers 
the  real  nature  of  the  punishments  actually  inflicted  for  the  viola- 
tions (fines,  short  imprisonment).  Certainly  punishment  for 
"  violations  of  police  regulations  "  cannot  be  placed  on  the  same 
plane  as  discipline  (school  punishment,  or  even  parental  punish- 
ment). Real  disciplinary  punishment,  while  possil)ly  not  exclud- 
ing the  purpose  of  reformation  and  the  well-being  of  the  one 
punished,  has  as  its  first  purpose  his  correction.  This  is  not  the 
case  with  punishment  inflicted  by  the  State,  and  most  certainl\- 
not  the  case  with  punishment  for  "  violation  of  police  regulations." 
It  is  of  more  importance  that  this  idea  should  be  repudiated,  since 
it  is  calculated  to  introduce  a  certain  element  of  despotism 
into  the  infliction  or  non-infliction  of  punishment  in  the  police 
courts  on  purely  individual  considerations.  When  it  is  considered 
how  closely  these  punishments  for  "  violation  of  police  regulations  " 
touch  the  individual's  sphere  of  rights,  such  despotism  appears 
intolerable  and  at  total  variance  with  the  conception  of  "  govern- 
ment based  on  rights  "  ("  Rechtsstaat  "). 

§  111.  Disciplinary  Punishments. — That  theory  of  that  class 
of  punishments  known  as  "  Disciplinary  punishments  "  ("  Dis- 
ciplinarstrafe  ")^  while  at  the  present  time  of  the  utmost  impor- 
tance, can  not  be  exhaustively  treated  here.  Its  relation  to 
ordinary  punishment  inflicted  by  the  State  should  however  be 
expounded.  It  must  first  be  distinguished  from  the  so-called 
*'  Public  Order  "  penalties  ("  Ordnungsstrafe  ")  in  the  proper 
sense,^  i.e.  punishment  specially  threatened  in  individual  cases 
for  compelling  one  or  more  specific  acts.  "  Disciplinary  punish- 
ment "  is  essentially  a  means  of  coercion.  If  the  purpose  aimed 
at  by  the  appropriate  officials  or  the  government  in  the  threaten- 
ing of  this  punishment  is  in  some  way  or  other  achieved,  the  exac- 
tion of  the  punishment  may  frequently  be  foregone,  without 
disadvantageous  results.  For  in  these  punishments  a  very  sulv 
ordinate  position  is  taken  by  moral  reprobation  of  the  act,  although 

1  Cf.  especially  Heffter,  in  "Neues  Archiv  des  Criminalreehts"  (Vol. 
13,  1832),  pp.  48  et  seq.;  MiUermoier,  Feuerbach's  "Lehrbueh"  (14th  ed.), 
§  477,  Notes  I  and  IV  ;  Biilnu  in  BlnnlschWs  and  Brnlcr's  "Staatslexicon", 
Vol.  Ill,  p.  140;  Pözl  in  the  same,  Vol.  IX,  pp.  (396  cl  seq.;  Meves  in  Von 
HolizendorjJ's  "Handbucli  des  deutschen  Strafrechts",  III,  pp.  939  et  seq.; 
Laband,  "Das  Staatsrecht  des  deutschen  Reiches",  I,  pp.  447-459.  The 
work  of  HefTter  is  of  especial  importance  and  also  the  (exposition  of  Laband. 

-  Inappropriately  insignificant  punishments  prescribed  especially  for 
the  non-observance  of  merely  formal  provisions  are  also  called  "Ordnungs- 
strafen." 

539 


§111)  APPENDIX 

some  tliought  of  tlie  same,  which  is  reflected  in  the  principle  of 
i;uilt  lierein  prevaihng,  is  not  entirely  lacking.  Consequently,  it 
is  generally  conceded,  in  these  coercive  punishments,  the  officials 
who  inflict  these  punishments,  whether  they  be  against  sub- 
ordinates or  private  persons,  have  the  right,  if  the  object  is  realized, 
to  dismiss  or  remit  the  same. 

Lack  of  Definiteness.  —  The  law  imposing  "  disciplinary  pun- 
ishment "  is  an  imitation  of  the  criminal  law  for  a  limited  circle  of 
persons  within  the  State  united  by  a  special  course  of  life.  There 
is  however  the  modification  that  the  special  purpose  of  the  associa- 
tion must  also  have  its  influence  upon  this  special  criminal  law. 
For  example,  where  education  is  the  purpose  of  the  association, 
consideration  of  the  individual  receives  more  attention  than 
can  be  the  case  in  public  punishment,  or  in  the  disciplinary  pun- 
ishment of  State  officials,  where,  at  the  most,  reformation  is  but  an 
incidental  feature.^  The  minimum  of  morality  required  is  in  ex- 
cess of  that  minimum  which  finds  its  expression  in  the  criminal 
statutes  of  the  State.  From  officials  of  the  State,  those  who 
attend  higher  public  institutions  of  learning,  possibly  from  military 
persons,  etc.,  more  is  demanded  than  from  the  general  public  at 
large.^  Along  with  their  very  special  duties,  they  have  the  duty 
to  conduct  themselves  in  harmony  with  their  position,  conspicuous 
as  it  is  in  one  way  or  other.  To  a  certain  extent,  it  is  possible 
for  the  requirements  of  this  conduct  to  be  precisely  fixed  by  custom 
and  statute.  But  a  general  provision  is  useful  which  provides  that 
he  who  is  subject  to  disciplinary  punishment  should  not  show 
himself  unworthy  '"  of  that  special  position  which  he  holds,  or 
that  he  should  so  conduct  himself  (as  it  was  expressed  in  the  old 
oaths  of  allegiance)  as  "  becomes  a  man  of  good  standing,  etc." 

3  Therefore  in  disciplinary  punishments  in  institutions  of  learning,  the 
punishment  may  to  a  certain  extent  be  foregone,  if  it  would  be  especially 
injurious  to  the  education,  or  the  advancement  of  the  one  punished. 
The  smaller  the  institution,  the  more  attention  can  be  given  to  considera- 
tions of  the  individual. 

^  This  position  may  indeed  be  termed  "disadvantageous",  a  "Privi- 
legium odiosum",  just  as  e.g.  the  position  of  con\acts  in  penal  institutions. 
The  convict  as  a  matter  of  fact  has  more  compulsory  duties  than  one  at 
liberty.  He  has  the  duty  of  industry,  or  order,  of  respect  and  of  obedience 
to  the  prison  officials. 

5  Cf.  the  Prussian  Statute  of  July  21,  1852,  concerning  breach  of  duties 
by  non-judicial  officials:  "An  official  who  (1)  ^^olates  a  duty  incumbent 
upon  him,  or  (2)  in  his  conduct  in  or  out  of  his  office  shows  himself  un- 
worthy of  the  esteem,  respect,  or  confidence  which  his  calling  demands, 
is  liable  to  the  pro^äsions  of  this  statute."  Cf.  also  §§  72  and  10  of  the 
German  Imperial  Statute  of  March  31st,  1873,  concerning  the  legal 
status  of  imperial  officials. 

540 


APPENDIX  [§111 

This  lack  of  definiteness  is  explained  by  the  fact  that  the  range 
of  these  duties  is  nearly  coextensive  with  that  of  the  purely  moral 
duties,  which  latter  it  is  very  difficult  to  comprehend  within  single 
principles.  Therefore  it  is  never  possible  to  completely  eliminate 
this  defect  of  lack  of  definiteness,  and  for  this  reason  in  this 
disciplinary  law,  much  depends  upon  the  composition  of  the  dis- 
ciplinary tribunals,  —  a  matter  in  which  we  in  our  present 
discussion  have  no  interest. 

Relation  of  Disciplinary  Punishment  to  the  Public  Criminal 
Law.  —  There  are  various  relations  which  may  be  held  by  this 
disciplinary  law  towards  the  public  criminal  law.^  The  attitude 
may  be  taken  that  every  public  offense  in  which  a  person  subject 
to  this  disciplinary  law  is  concerned,  shall  be  regarded  only  as  an 
offense  subject  to  the  disciplinary  law,  although  the  rules  for 
decision  are  substantially  those  of  the  public  criminal  law.  For 
the  discipline  derived  from  the  general  statutes  of  the  States  is 
also  binding  upon  the  individual  within  the  special  disciplinary 
circle.  This  conception  of  the  relation  of  the  disciplinary  law  and 
public  criminal  law  more  readily  obtains,  where  the  individual 
is  regarded,  as  it  w^ere,  as  merged  in  the  disciplinary  circle, 
where  belonging  to  the  disciplinary  circle  is  considered  of  over- 
shadowing importance.  Such  was  the  case  in  the  law  of  the  INIiddle 
Ages  (the  Canon  law)  in  respect  to  crimes  of  the  clergy,  and  such 
is  the  case  to-day  in  the  law  of  the  German  Empire,'^  and  Conti- 
nental Europe  generally,  in  respect  to  offenses  of  military  persons. 

It  is  possible  to  proceed  from  the  opposite  side,  and  to  regard 
the  breach  of  the  general  criminal  law  and  the  breach  of  the  dis- 
ciplinary law  comprehended  within  the  same  act,  as  matters  to  be 
quite  separately  considered.  The  common  law  adopts  this  atti- 
tude in  respect  to  ofTenses  of  public  servants,  and  (of  late  years, 
since  the  abolition  of  the  so-called  "  academic  "  jurisdiction  by 
the  introduction  of  the  legislation  of  the  Empire  ^)  in  respect  to 
offenses  of  students  in  the  German  Universities.     According  to 


6  Moreover  it  is  possible  that  a  breach  of  a  duty  as  a  public  servant  may 
because  of  the  special  importance  of  the  office,  constitute  a  criminal  of- 
fense, thus  particularly  violation  of  a  duty  as  a  judicial  officer. 

^  Although  the  non-military  offenses  of  military  persons  are  according; 
to  §  .3  of  the  "Militar-Strafgesetzbuch"  for  the  CJerman  Empire  of  .June  20, 
1872,  to  be  judged  according  to  the  general  criminal  laws,  yet  the  juris- 
diction in  such  cases  belongs  to  the  military  officials,  i.e.  thus  to  the  dis- 
ciplinary officials. 

^"Deutsches  Geriehtsverfassungsgesetz",  §  13,  Prussian  Statute  of 
May  29,  1879,  dealing  with  the  legal  status  of  students,  etc. 

541 


§111]  APPENDIX 

this  view,  the  disciplinary  Uiw  is  in  principle  something  entirely 
independent  of  the  general  criminal  law.  There  is  nothing  to 
prevent  the  same  act  from  being  punished  according  to  both  laws. 
For  it  is  possible  for  an  act  to  entail  a  very  slight  punishment, 
or  indeed  no  i)unishment  at  all,  according  to  the  general  criminal 
law,  and  at  the  same  time  when  considered  from  the  disciplinary 
viewpoint,  i.e.  from  the  standpoint  of  maintaining  the  honor 
and  morality  of  a  class  to  merit  the  severest  repression.  For  ex- 
ample, an  injury,  under  §  199  of  the  German  Criminal  Code,  might 
because  of  some  compensation  or  set-ofY,  or  of  extra-judicial  re- 
dress, go  unpunished  by  the  ordinary  judge,  while  the  same  act 
—  e.g.  a  public  brawl  among  students  or  officials  —  might  from  the 
disciplinary  standpoint  deserve  a  very  sharp  penalty. 

However,  the  disciplinary  punishment  should  not  be  made  too 
independent  of  the  ordinary  punishment.  Unless  one  would,  as 
it  were,  constitute  the  class  in  question  a  State  within  the  State, 
there  must  be  adopted  the  general  attitude  that  the  ordinary 
punishment  constitutes  a  sufficient  repression  for  the  members 
of  all  the  classes  in  the  State,  but  that  the  judge,  as  far  as  his 
range  for  the  exercise  of  discretion  extends,  is  not  prevented  from 
taking  into  consideration  the  rank  of  the  accused  and  his  cor- 
responding duties.  One  would  have  a  sense  of  injustice  if  in  the 
same  case  a  public  officer  or  a  student,  for  example,  should  be  sub- 
jected to  double  punishment,  although  an  effective  appeal  could 
not  be  made  to  the  rule  of  procedure  "  Xe  bis  in  idem  ",  since 
judgment  is  only  passed  on  that  for  which  the  judge  in  question 
is  competent.^  (The  purely  disciplinary  phase  of  the  matter 
cannot  be  passed  upon  by  the  ordinary  judge.)  Frequently  the 
party  to  whose  hands  the  disciplinary  punishment  has  been 
entrusted  has  no  incentive  to  inflict  a  special  penalty,  since  the 
public  punishment  at  the  same  time  serves  the  ends  of  discipline. 
This  is  of  importance  where  there  is  an  acquittal  by  the  ordinary 
judge.  If  the  judge  acquits  the  accused  because  that  which  is 
proven  against  him  does  contain  the  facts  necessary  for  a  public 
offense,^°  it  mav  well  be  that  a  state  of  facts  exists  which  would 


'  I  am  unable  to  perceive  how  the  rule  "Ne  bis  in  idem"  causes  diffi- 
culties which  can  be  obviated  only  in  the  most  formal  manner,  as  Laband 
believes  (p.  448). 

1»  Cf.  also  e.g.  §  5  of  the  Prussian  Statute  of  July  21,  1852 :  "If  there 
is  an  acquittal  in  the  ordinary  courts,  then  there  can  be  a  disciplinary 
procedure  in  respect  to  those  facts  which  have  come  under  discussion  in 
the  trial  in  the  courts  only  in  so  far  as  these  facts  in  themselves  eon- 

542 


APPENDIX  [§111 

justify  the  infliction  of  even  a  very  severe  disciplinary  penalty. 
For  example,  the  criminal  judge  may  be  of  the  opinion  that  an 
injury  in  the  legal  sense,  a  fraud,  etc.,  has  not  occurred,^^  and 
yet  there  may  exist  facts  constituting  a  lack  of  the  respect  due  to 
a  superior,  sharp  practice,  etc.  In  this  case  the  acquittal  does 
not  form  the  slightest  obstacle  to  disciplinary  punishment.  But 
quite  a  different  condition  obtains  if  the  criminal  judge  denies 
the  existence,  as  far  as  the  accused  is  concerned,  of  that  state  of 
facts  which  could  render  the  accused  amenable  to  even  the  dis- 
ciplinary penalty  —  if  for  example,  the  judge  found  it  not  proven 
that  the  accused  took  part  in  the  act,  e.g.  the  })ra\vl,  with  which 
he  is  charged.  In  such  a  case  it  is  natural  that  those  to  whom  the 
infliction  of  disciplinary  penalties  is  entrusted  should  respect 
the  acquittal.  If  the  criminal  judge,  to  whom  the  State  has 
granted  means  of  investigation  at  least  as  effective  (and  in  most 
cases  more  effective),  as  those  of  the  disciplinary  officials,  could 
not  arrive  at  a  conviction,  the  disciplinary  officials  may  not  ad- 
vance the  claim  that  they  have  greater  powers  of  discernment. 
It  is  in  no  sense  the  function  of  the  disciplinary  procedure  to  make 
amends,  in  a  manner  more  or  less  arbitrary,  for  the  failure  of  the 
ordinary  criminal  administration  to  obtain  results. 

Effect  of  Conviction  by  the  Public  Criminal  Law.  —  A  convic- 
tion by  the  ordinary  criminal  judge  is  not  conclusive  for  the  dis- 
ciplinary judge  as  indicating  the  guilt  of  the  accused.  If  the 
statutory  law  does  not  make  special  provision  to  the  contrary, 
the  arriving  at  a  positive  opinion  as  to  guilt  must  be  unhampered, 
and  an  accused  is  entitled  to  this  also  before  the  disciplinary  judge. 
And  why  should  a  man  who  is  possibly  innocent  undergo  a  double 
penalty  because  he  has  once  been  formally  convicted  ?  On  the 
other  hand,  in  regard  to  its  actual  results  the  conviction  is  very 
often  conclusive.  For  example,  where  a  man  has  been  convicted 
of  a  dishonorable  crime  or  sentenced  to  severe  punishment,  it  will 
be  said  immediately  that  we  can  no  longer  tolerate  him  in  the 
circle  to  which  we  belong.^-  There  can  also  be  the  i)enalty  of  ex- 
clusion (expulsion  from  the  public  institutions  of  learning  or  dis- 

stitute  a  breach  of  a  duty  of  public  service,  without  regard  for  the  ele- 
ments of  fact  fixed  by  statute  as  constituting  the  violation,  misdemeanor 
or  crime." 

"  In  this  respect,  cf.  also  Leyser,  "Spec."  650,  n.  50. 

'2  Cf.  e.g.  §  7  of  the  Prussian  statute  just  n-ferred  to.  For  the  reasons 
given  in  the  text,  if  iijiulicidl  investigation  is  l>cgun,  its  results  will  often 
be  awaited.     Cf.  §  4  Abs.  2  of  the  quoted  Prussian  Statute ;    §  78  Abs.  2 

543 


§1111  APPENDIX 

missjil  from  employment  or  from  piil)lic  service.)  Logically  this 
should  1)0  the  only  punishment. 

Difference  of  the  Public  Criminal  Law  and  Disciplinary  Law  in 
Attitude  towards  the  Offender.  —  This  brings  us  to  a  point  where 
the  clillerence  between  the  (liscij)linary  law  and  the  public  criminal 
law  is  very  marked.  It  is  true  that  in  their  fundamental  idea  public 
criminal  law  and  disciplinary  law  are  not  distinguished,  and  par- 
ticularly that,  as  is  confirmed  by  the  practice  of  every  disciplinary 
tribunal,  the  element  of  guilt  is  as  vital  in  the  disciplinary  law  as 
in  the  public  criminal  law.  However,  incklentally  the  uselessness 
of  the  individual  or  his  unworthiness  may  be  given  consideration 
in  the  disciplinary  law,  and  hereby  the  law  is  extended  or  (as  the 
case  may  be)  limited.  At  least,  this  is  so  in  all  those  cases  in 
which  the  inclusion  within  the  disciplinary  circle  in  question  pre- 
supposes a  special  capacity  or  merit.  In  this  respect  there  is  an 
element  of  private  law"  in  disciplinary  \aw}^  The  State  can  not  be 
bound  to  retain  an  official  in  its  service  and  to  give  him  all  the 
advantages  of  his  position,  when  the  State  can  not  use  him  because 
he  is  mentally  or  physically  incompetent  to  attend  to  his  duties,^^ 
or  because  by  his  actions  he  has  lost  the  necessary  confidence  of 
others  and  their  respect.  The  institution  of  learning  can  not  be 
bound  to  retain  as  its  fellow  or  student  one  who  has  committed 
a  dishonorable  act.  This  private  law  aspect  comes  more  into 
prominence  where  entrance  into  the  circle  in  question  appears  to 
be  either  a  privilege  or  else  a  voluntary  act  of  the  individual. 

of  the  Imperial  Statute  of  1873.  It  all  depends  however  upon  the  char- 
acter of  the  group  subject  to  the  discipline  in  question.  In  suspending 
the  previously  mentioned  statutes  of  disciplinary  investigation,  §  14  of 
the  Prussian  Statute  of  May  29,  1871,  dealing  with  the  legal  status  of 
students  says:  "The  disciplinary  action  of  university  authorities  is  in- 
dependent of  any  investigation  in  regard  to  the  same  act  conducted  in 
the  law  courts." 

1'  This  aspect  of  the  question,  which  Hefter  also  considered  ("Lehr- 
buch des  gemeinen  deutschen  Strafrechts",  p.  178),  is  argued  too  one- 
sidedly  by  Laband,  pp.  449  el  seq.  He  regards  the  disciplinary  power  of 
the  State  over  its  officials  as  an  indemnification  in  an  action  in  contract. 
But  the  question  of  merit  upon  which,  according  to  Laband,  the  possi- 
bility of  the  fulfillment  of  the  contract  should  depend,  necessarily  in^•olves 
a  moral  decision  aldn  to  one  of  the  criminal  law.  Hugo  Meyer,  "Straf- 
recht", §  1,  note  3,  expresses  himself  as  opposed  to  Laband's  too  biassed 
conception.  Pözl  in  Bluntschli-Brater's  "Staatslexieon",  IX,  p.  696, 
however,  goes  too  far,  since  in  eases  of  doubt  he  favors  the  analogous 
application  of  the  fundamental  principles  of  the  public  criminal  law. 

1^  This  phase  of  the  subject  —  incapacity  to  perform  official  duties 
because  of  mental  or  physical  defects  —  in  respect  to  members  of  the 
German  Imperial  Court  is  exclusively  dealt  with  in  §  130  of  the  German 
"  Gerichtsvei'fassungsgesetz." 

544 


APPENDIX  [§  111 

This  is  especially  so  in  the  case  of  public  servants.^^  It  would 
be  possible  to  refer  the  question  of  expulsion  or  of  unfitness  to  a 
civil  tribunal.^^  If  for  other  reasons  this  were  not  done,  and 
even  where  a  disciplinary  official  rendered  the  decision,  neverthe- 
less the  actual  question  remains  the  same.^^  There  exists  here 
by  force  of  a  positive  legal  provision  a  connection  between  the 
disciplinary  law,  peculiar  to  itself,  and  a  portion  of  the  law  which, 
while  related  to  it,  is  not  of  the  same  character. 

From  this  viewpoint  disciplinary  punishment  can  in  the  cases 
mentioned  become  subject  to  a  certain  limitation.  If  the  in- 
dividual renounces  his  adherence  to  the  favored  class  in  question 
and  also  renounces  all  the  special  advantages  resulting  therefrom, 
e.g.  the  title,  etc.,  then  any  infliction  upon  him  of  disciplinary 
punishment  seems  useless  and  irrational.  Since  he  has  departed 
from  the  special  class,  it  knows  him  no  more.  Punishment  of  a 
Ijrior  act  in  violation  of  the  disciplinary  law  would  cause  this  act 
to  assume  the  character  of  a  public  crime. ^^  Such  a  punishment 
can  be  justified  only  where  a  monej^  fine  fixed  prior  to  the  oft'ender's 
departure  is  thereafter  enforced  on  the  ground  that  it  constitutes 
a  "  jus  qusesitum  ",  a  property  right,  of  the  holder  of  the  dis- 
ciplinary power.  This  latter  could  be  based  upon  the  consent  of 
the  parties  interested  to  the  rules  laid  down  for  their  government. 

1^  Together  with  the  question  of  lack  of  merit,  consideration  must  also 
be  given  to  whether  the  conduct  of  the  official  has  created  an  impression 
on  the  public.  The  State  is  not  concerned  in  things  which  are  not  publicly 
commented  upon.  A  stringent  investigation  of  the  morality  of  its  offi- 
cials would  be  more  injurious  than  beneficial.  The  "infamia",  upon  which 
the  earlier  Canon  procedure  laid  so  much  stress,  always  had  its  significance 
in  this  respect.  P'or  this  reason  the  transfer  to  the  disciplinary  procedure 
of  all  the  compulsory  methods  of  the  pulilie  criminal  procedure  is  not 
proper,  and  it  can  not  be  admitted  that  the  disciplinary  officials  apart 
from  special  statutory  provision  possess  the  rights  of  a  public  criminal 
judge. 

'6  As  to  this,  Ilefftcr,  p.  178,  and  Pfeiffer,  "Prakt.  Ausführungen", 
III,  pp.  411  el  seq. 

1^  However,  in  many  cases  in  which  a  man,  without  having  committed 
a  grave  (^rime,  shall  have  been  deprived  of  his  office  as  a  matter  of  dis- 
cipline, he  must  retain  a  portion  of  his  compensation.  As  to  this,  cj. 
also  Herrn.  tSchulze,  "Das  preussische  Staatsrecht",  1,  p.  344,  and  Leyser, 
"Spec."  650,  n.  31. 

'^  However,  an  offense  previously  committed  ran  constitute  an  e.\- 
elusion  from  the  group  in  question.  For  this  reason,  §  6-1  of  the  German 
Ordinance  of  July  I,  187S,  dealing  with  solicitors,  very  properly  provides  : 
"There  can  be  an  investigation  as  to  the  fitness  of  a  solicitor  on  account 
of  acts  committed  Ix'fore  he  became  such,  only  when  the  acts  are  such 
as  would  exclud(>  him  from  his  profession." 

Yor  example,  tlie  officials  of  a  German  university  can  expel  such  per- 
sons as  have  obtained  admission  by  fraud  and  e.g.  have  previously  com- 
mitted a  common  crime. 

545 


§  111]  APPENDIX 

Other  Varieties  of  Disciplinary  Punishment.  —  In  conclusion, 
it  is  i)()ssil)lo  tliat  a  kind  ol"  disciplinary  law  can  be  founded  in 
l)rivate  relations  through  contract,  e.g.  if  the  workers  in  a  factory 
subject  themselves  to  factory  rules  established  by  the  owner  and 
to  definite  penalties  for  the  breach  of  these  rules.  Such  a  dis- 
cipUnary  law  juristically  falls  entirely  under  the  conception  of 
contract.  If  the  factory  worker  is  not  satisfied,  e.g.  with  the 
reduction  of  wages  established  by  the  owner  of  the  factory  as  a 
penalty,  then  in  the  absence  of  other  provisions,  recourse  may  be 
taken  to  the  civil  courts.  There  is  therefore  precluded  from  this 
punishment  every  disadvantage  which  can  not  be  specifically 
determined  in  the  contract  in  advance.  Therefore  all  imprison- 
ment is  precluded,  —  at  least  deprivation  of  freedom  would  be- 
come illegal  and  criminally  punishable  from  the  moment  the 
prisoner  would  declare  that  he  desired  to  no  longer  be  deprived 
of  his  freedom. 

Where  Church  and  State  are  actually  separated,  this  also  is 
applicable  to  those  punishments  which  the  clerical  power  inflicts 
upon  its  adherents.^^  The  privilege  of  using  imprisonment  as  an 
actual  punishment  is  thus  obviously  always  a  concession  from 
the  State  to  the  Church. 

It  is  not  possible  to  advance  a  universal  and  sufficiently  definite 
theory  of  disciplinary  punishment.  It  all  depends  upon  the  pur- 
pose of  the  group  to  which  the  disciplinary  law  applies.  INIerely 
its  general  outlines  may  be  given  and  its  relation  to  the  general 
criminal  authority  of  the  State. 

§112.  Summary.  —  In  conclusion,  we  desire  to  reduce  our 
theory  of  criminal  law  to  the  following  brief  principles : 

Criminal  law  is  founded  upon  that  moral  disapprobation,  to  a 
certain  extent  inevitable,  of  actions  which  are  immoral,  i.e.  which 
are  detrimental  (or  dangerous)  to  those  conditions  upon  which 
depend  the  existence  and  progress  of  human  society.  This  dis- 
approbation is  inevitable  to  the  extent  that  morality  is  generally 
founded  and  built  upon  a  certain  concurrence  in  the  moral  opinions 
of  all.  This  general  principle,  however,  furnishes  no  answer  to  the 
question  as  to  what  individual  acts  should  be  subject  to  the  or- 
ganized disapprobation  of  the  State.  This  is  determined  by 
numerous  considerations  of  utility.  These  are  identical  with 
justice  (which  in  criminal  law  can  only  be  relative,  i.e.  historical) 

^^  Cf.  Richter,  "Lehrbuch  des  katholischen  u.  evangelischen  Kirchen- 
reehts",  edited  by  Dove  (7th  ed.),  p.  690. 

54G 


APPENDIX  [§  112 

only  in  so  far  as  they  are  in  harmony.  That  which  we  usually  call 
punishment  is  only  an  external  means  of  emphasizing  moral  dis- 
approbation :  the  method  of  punishment  is  in  reality  the  amount 
of  punishment, 

Confirmation  of  our  view  that  punishment  ("  Strafe  ")  is 
nothing  other  than  moral  disapprobation  is  furnished  by  the 
German  language  itself. 

The  word  "  Strafe  "  as  signifying  public  punishment  is  of  com- 
paratively recent  origin.  It  does  not  occur  until  the  time  when, 
on  the  one  hand,  the  old  private  vengeance  and  composition  and, 
on  the  other,  the  more  despotic  treatment  of  those  who  were  not 
free  had  completely  disappeared.  Originally  it  had  no  meaning 
other  than  that  of  censure,  or  disapprobation. 

The  original  meaning  of  the  word  "  strafen  "  most  certainly  was 
not  to  inflict  pain  or  to  torment.^  \Yhen  criminal  law  abandoned 
the  old  characteristics  of  private  law,  and  its  moral  idea  acquired 
a  clearer  expression,  the  language  with  rare  discrimination  retained 
the  original  word. 

1  Cf.  Grimm,  "Deutsche  Rechtsalterthümer " ,  pp.  680,  681  ;  Weigand, 
"Deutsches  Wörterbuch";  Lexer,  "Mittelhochdeutsches  Wörterbuch"; 
Schiller  and  Lübhen,  "Mittelniederdeutsches  Wörterbuch";  Schmeller, 
"Bayerisches  Wörterbuch",  under  "Strafe"  and  "Strafen."  The 
original  and  true  meaning  of  "strafen"  is  :  "To  compare  something  with 
a  rule,  an  object  for  measuring,  and  either  to  approve  of  it,  or  to  bring  it 
to  its  proper  condition.  Thus  the  carpenter  'strafft'  the  wood.  'Straf- 
fen' a  copy  with  its  original.     To  hold  in  good  'Straff.' '' 


547 


INDEX 


Abduction,  164,  169. 

Abegg,  his  criminal  theory,  471. 

Abortion,  166,  167. 

"Absolute"  theories  of  criminal 
law,  379,  n.  2;  changes  in,  451; 
combination  of  absolute  and  rela- 
tive purposes,  452 ;  in  Abegg, 
471;  in  Heffter,  473;  in  Frey- 
tag, 473,  n.  8  ;  in  Hälschner,  478  ; 
in  Heinze,  486 ;  controversj^  be- 
tween relative  theories  and  abso- 
lute principle,  492 ;  defects  of, 
498. 

Accessories  to  crime,  in  Roman 
criminal  law,  punishment  of,  41  ; 
in  primitive  Germanic  law,  68; 
in  Scandinavian  law,  129 ;  in 
medieval  French  law,  159 ;  in 
Jousse's  treatise,  267. 

Accusatory  system,  in  Roman  crim- 
inal procedure,  25,  47,  55 ;  in 
medieval  Germanic  law,  118; 
in  medieval  French  law,  150 ; 
in  the  Code  of  the  North  German 
Confederation,  359,  361. 

"Acht",  113,  n.  3. 

Act  and  author,  disapprobation  of, 
501. 

"Act  of  hand",  126. 

"Actiones  populäres",  25. 

"Admonition"  theory  of  punish- 
ment, 439. 

Adultery,  103,  161,  170,  184,  228, 
286. 

.Esthetic  judgment,  Herbart's  ret- 
ribution theory  of,  455. 

Afflictive  punishments,  273. 

Ahrens,  writer  on  criminal  law,  445. 

Albigenses,  the,  180. 

"Amende  honorable",  274. 

Analogy,  use  of,  in  defining  and 
punishing  crime,  250,  252,  330. 

Anathema,  punishment  of  the 
Church,  124. 

Animals,  criminal  prosecutions 
against,  154. 

Aquinas,  Thomas,  393. 

Arbitrariness  of  the  law  in  the 
Middle  Ages,  106. 


Aretinus    de    Gambilionibus,     An- 

gelus,  206,  307. 
Aristotle,  386. 
Arms,  the  carrving  of,  285. 
Arson,  132,  136,  138,  171,  287. 
Asvlum,  right  of,  88 ;    violation  of 

fight  of,  112,  n.  2. 
Athens,  criminal  law  of,  6,  ?*.  7,  19. 
Attempt  at  crime,   punishment   of, 

41,  130;    no  theory  of,  in  Custu- 

mals  of  the  Middle  Ages.  157. 
"Aufklärung",  the,  299,  311. 
Augsburg,  Statutes  of,  108. 
Austrian,  "Theresiana",  249;  Code 

of  Joseph  II  of  1787,  251  ;    Code 

of    1803,    257 ;     legislation    since 

1848,  364. 
Author  and  act,  disapprobation  of. 

501. 
Azo,  glossator,  206. 

Baden,  Code  of,  of  1845,  346. 

Baldus  de  Ubaldis,  206,  307. 

"Bambergensis",  the  ("Bamber- 
gische Halsgerichsordnung"),  208, 
304;  relation  of,  to  the  Italian 
legal  learning,  209 ;  the  penalties 
of,  211  ;  relation  of,  to  the  local 
law,  212;  intrinsic  merit  of.  214; 
recognition  of,  outside  of  Bam- 
berg, 214;  comparison  of  the 
Carolina  and,  217. 

Ban,  pul)lic,  63,  n.  17;   royal,  73. 

Banishment,  in  France  in  the  later 
Middle  Ages,  190;  for  life,  270. 
See   P]xiLE. 

Banlcruptcy.     See  Fr.\udulent. 

Bar,  C.  L.  von,  his  exposition  of 
the  theorv  of  moral  disapproba- 
tion. 497-547. 

Bartolomeus  de  Saliceto.  206. 

Bartolus  de  Saxoferrato,  206,  307. 

Batteries,  167. 

Bauer,  the  "admonition"  theory  of, 
439. 

Bavaria,  Feuerbach  as  legislator  for, 
328. 

Bavarian  Code,  of  1751,  248;  of 
1813,  330,  343;   of  1861,  352. 


549 


INDEX 


Bcaumanoir,  Philippo  de,  14S  el  seq. 

JJ(H',('aria,  (-<>sare,  311,  317,  413. 

liclj^iuiii,  3ü7. 

Bolvisio,  Jaeobus  de,  206,  307. 

"B(wu'lit  of  clorgy",  86,  n.  11. 

Bciitliain,  Jcroinv,  435. 

B(>rlich,  Matthias,  236,  307. 

BcTiier,  the  criminal  theory  of,  480. 

Bifjaniy,  102,  170,  286. 

"Billonage",  282. 

Biiuliiifj,  his  "norm"  theory  of 
punishment,  477,  492  ;  on  law  and 
morality,  500,  n.  1  ;  on  the  sover- 
eignty of  the  individual  con- 
science, 500,  n.  1  ;  on  torts  and 
crimes,  527,  528,  532. 

Blasphemy,  184,  228,  280. 

Blood  ban,  233,  n.  1. 

Boehmer,  Joh.  Sam.  Friedrich  von, 
245,  308. 

Bossius,  Aegidius,  224,  307. 

Bouteiller,  150  et  seq. 

Brand,  the,  190. 

Breach  of  a  pledged  peace,  67,  n.  3. 

Breach  of  the  peace,  107,  143 ;  a 
forty-mark  cause,  132. 

Breach  of  the  peace  of  the  land,  66. 

Brunswick,  Criminal  Code  of,  345. 

Burning  alive,  180. 

Capital  Punishments,  in  France, 
269.     See  Death  Penalty. 

Capitularies  of  the  Carolingians,  72. 

Carnality,  286. 

"Carolina",  the,  215;  the  "saving 
clause",  216,  304;  comparison 
of  the  Bambergensis  and,  217 ; 
careless  manner  of  publication, 
218  ;  varied  application  of,  219  ; 
general  effect  of,  220  ;  relation  of, 
to  the  Reformation,  221 ;  sup- 
plemented during  the  1500  s,  223  ; 
not  intended  for  really  learned 
jurists,  225 ;  evasion  of,  235 ;  in 
the  Netherlands,  304. 

Carpzov,  Benedict,  236,  307. 

Carrara,  436,  n.  3. 

*' Categorical  imperative",  423. 

Catharism,  180. 

Censorship  in  Roman  public  law,  24. 

Christian  Church,  in  the  Roman 
Empire,  53,  54  ;  historical  relation 
of,  to  the  State,  84-88. 

Christian  Church,  criminal  law  of, 
excommunication  as  the  founda- 
tion of,  79  ;  unlimited  in  its  scope, 
81 ;  law  of  penance,  81 ;  influence 
upon  the  criminal  law  of  the 
State,  81;  growth  of,  82,  83; 
similarity  to  criminal  law  of  the 
State,  82 ;  union  with  criminal 
law  of  the  State  under  the  Prank- 


ish kings,  84;  influence  of  right 
of  asyhim,  88;  influence  of 
acquisition  of  temporal  juris- 
diction, 89;  "poena?  medicinales" 
and  "ptKnjB  vindicativae  ",  91; 
defects  of,  91;  heresy,  92;  ideal 
of  Divine  Justic(;  and  tlie  Alosaic 
Law,  93 ;    ultimate  effect  of,  94. 

Christianity,  influence  of,  in  later 
Roman  Empire,  52,  54 ;  attitude 
of,  towards  the  law,  392 ;  changed 
position  of,  as  a  State  religion, 
393 ;  and  punishment,  in  the 
criminal  theory  of  Schleiermacher, 
467  ;  and  punishment,  regarded  as 
disapprobation  and  as  retribution, 
506. 

Christians,  persecution  of,  43,  53. 

Church.     See  Chrlstian  Church. 

Church  mulcts,  124. 

Circumstantial  evidence,  239. 

Cities  of  refuge,  6,  n.  6. 

Civic  death,  272. 

Civil  punishments,  277. 

Civil  wrongs.     See  Tort. 

Clarus,  Julius,  206,  224,  307. 

Clergy  of  the  Church,  privilege  of, 
83. 

Cocceji,  Samuel  von,  410. 

Codes : 

Law  of  the  Twelve  Tables,  22 ; 
Capitularies  of  the  Carolingians, 

72; 
Scandinavian    provincial    Codes, 

125; 
Scandinavian  town  Codes,  141 ; 
Bavarian  Code  of  1751,  248; 
Austrian  Theresiana,  249 ; 
Statutes  of  Frederick  II  of  Prussia, 

250; 
Austrian   Code   of  Joseph   II   of 

1787,  251,  311; 
Prussian  Landrecht  of  1794,  254 ; 
Austrian  Code  of  1803,  257  ; 
Swedish-Finnish,  295 ; 
of  Queen  Cristina,  296 ; 
Code  of  1734  (Scandinavia),  296 ; 
Penal     Code     of     Oct.     6,    1791 

(France),  321 ; 
Code  of  Brumaire,  322 ; 
Bavarian  Code  of  1813,  330,  343 ; 
Penal  Code  of  1810  (France),  335  ; 
Code     of     Criminal     Procedure 

(France),  335 ; 
German    Criminal  Codes    of    the 
first  half  of  the  1800  s,  343-346 ; 
Prussian  Criminal  Code  of  1847, 

349; 
Prussian  Criminal  Code  of  1851, 

349; 
Criminal  Code  of  Lübeck,  352 ; 
Oldenburg  Code  of  1858,  352 ; 


550 


INDEX 


Codes  {continued) : 

Bavarian  Code  of  1861,  352; 
other  German  Codes,  353  ; 
Criminal  Code  of  the  North  Ger- 
man Confederation,  354 ; 
Draft  Code  of  1909   (Germany), 

362; 
Austrian,  since  1848,  364  ; 
the  Dutch  Code,  366  ; 
the  Belgian  Code,  367  ; 
the  Danish  Code,  367 ; 
the  Norwegian  Code,  368 ; 
the  Swedish  Code,  368 ; 
the  Finnish  Code,  369  ; 
the  Swiss  Codes,  370. 

Commanded  peace,  142. 

"Compensation"  theory  of  punish- 
ment, 379,  n.  2,  447. 

Composition  of  offenses,  67, 68, 70, 72. 

Compurgators,  proof  by,  117. 

Concealers  of  crime,  160. 

"Conclusions",  260. 

Conditional  liberation,  342. 

Confession,  157. 

"Confidence",  280. 

Confiscation  of  property,  in  Roman 
criminal  law,  37 ;  in  primitive 
Germanic  criminal  law,  61,  n.  14; 
in  medieval  Germanic  law,  111  ; 
in  medieval  French  law,  192 ; 
from  the  1500  s  to  the  Revolution, 
270. 

Confrontativo  proof,  117. 

"ConsiHa",  the,  of  Fichard,  225. 

Contract,  theory  of  criminal  law 
based  on,  401,  413,  416,  424, 
473,  n.  8,  475. 

Corporal  punishment,  35,  144,  273. 

Corpse,  proceedings  against  or  e.x- 
ecution  upon,  187,  250,  270,  282, 
286. 

Counsel  to  crime,  103. 

Counterfeiting  of  money,  173,  282. 

Counterfeiting  of  the  royal  letters 
or  seal,  283. 

Crime,  Latin  words  for,  9,  n.  2 ; 
bn^ach  of  peace  with  party  in- 
jured, 64  ;  formal,  65 ;  the  Ger- 
manic conception  of,  65  ;  special 
relations  of  space  as  relating  to  tiie 
commission  of,  66 ;  little  con- 
sideration given  to  the  element  of 
intention  in,  in  primitive  Ger- 
manic law,  68,  69;  the  element 
of  secrecy  in,  70;  prevention  of, 
88,  n.  20;  and  i)(>rniissil)l(!  self- 
defense  or  self-redress,  97,  98 ; 
instigation  to,  103;  attempts  at, 
103  ;  through  negligence  and  with 
malice,  103 ;  considered  as  an 
infraction  of  the  law  in  its  ob- 
jective   sense,     120 ;    implies    in- 


tent, 152 ;  intent  alone  does  not 
constitute,  156 ;  limitations  of 
principk^  that  it  was  per- 
sonal, 161  ;  wlien  offender  is  or  is 
not  taken  in  the  act,  161  ;  l)egin- 
ning  of  ps3'chologieal  analj'sis  of, 
245 ;  conception  of,  in  France, 
265 ;  by  virtue  of  judicial  deci- 
sion, 512 ;  tort  and,  524—533  ; 
\iolation  of  police  regulations  and, 
535,  537. 

Crimes,  changes  in  the  theory  of 
specific,  in  medieval  German  law, 
101  ;  in  Swiss  law,  144  ;  classifica- 
tions of,  148,  1()2,  266 ;  doctrines 
as  to  judicial  discretion  in  defining, 
240 ;  according  to  the  Declara- 
tion of  the  Rights  of  Man,  320 ; 
according  to  the  French  Penal 
Code  of  1791,  321  ;  according  to 
the  Bavarian  Code  of  1813,  330 ; 
according  to  the  French  Penal 
Code  of  1810,  337  ;  accordmg  to 
the  Prussian  Code  of  1851,  350; 
in  the  Austrian  Code,  364  ;  politi- 
cal, 373  ;  according  to  Servin,  419. 

Criminal  law,  sources  of,  4,  479 ; 
of  Greece,  6,  n.  7 ;  influence  of 
priesthood  in,  6,  7 ;  steady 
development  of,  to  be  obtained 
only  by  adherence  to  an  outward 
standard,  92 ;  reconstruction  of 
society  traceable  in,  119  ;  theories 
of,  379,  n.  2  ;  practical  importance 
of  theories  of,  379  ;  beginnings  of 
speculation  on,  381  ;  Greek  and 
Roman  dissertations  had  no  effect 
upon  the  practical  sha])ing  of, 
391  ;  lack  of  interest  of  medie\al 
philosophers  in,  395 ;  and  Hugo 
Grotius,  398 ;  and  Hobbes,  401  ; 
and  Spinoza,  404  ;  and  Pufendorf, 
406  ;  and  Locke,  409  ;  and  Leib- 
nitz, 409;  and  Coeceji,  410; 
and  Thomasius,  411  ;  and  Wolff. 
411;  and  Rousseau,  412;  and 
Beccaria,  413;  and  Fihuigii-ri, 
416  ;  and  Globig  and  fluster,  417  ; 
and  Ser\än,  418;  and  Wieland, 
419;  and  Kant,  422;  and  Fichte. 
424;  the  "special  prevention" 
theory  of  (Grolmann),  427 ; 
and  Feuerbach's  tlu>orv  of  deter- 
rence. 428;  and  Thihaut,  433; 
and  Bentham,  435;  the  theory 
of  "necessary  defense"  (Roniag- 
nosi),  43() ;  and  Oersted,  438  ;  the 
"admonition"  theory  of  (Bauer), 
439 ;  and  Schulze,  441 ;  and 
Steltzer,  441  ;  theory  of  reforma- 
tion founded  on  determinism 
(Groos,    Krause,  Ahrens,  Röder), 


551 


INDEX 


442;  tho  "restitution"  or  "com- 
pensation" theory  of  (Welcker, 
Hopp),  451 ;  changes  in  the 
absolute  principle  of  (ZachariJi, 
Henke),  452;  combination  of 
absolute  and  relative  purposes 
of  (Rossi,  etc.),  452;  Herbart's 
retribution  theory  of  sesthetic 
judgment,  455 ;  Hegel's  theory 
of  punishment  as  the  negation  of 
wrong,  460 ;  theological  tend- 
encies of  (Stahl,  Sehleiermacher, 
Daub),  464;  later  development 
of  Hegel's  theory,  470 ;  and 
Heinze,  482 ;  and  von  Kirch- 
mann, 48() ;  and  Schopenhauer, 
487  ;  and  Diihring,  E.  von  Hart- 
mann, von  Liszt,  490 ;  Binding's 
theory  of  the  effect  of  disobedience 
to  a  rule,  492  ;  and  Laistner,  493  ; 
defects  of  the  absolute  and  relative 
theories  of,  498 ;  the  purpose  of, 
499-513 ;  considerations  regard- 
ing punishment,  515-523 ;  and 
morality  in  its  narrower  sense, 
523 ;  tort  and  crime,  524-533 ; 
Adolation  of  police  regulations, 
533-539 ;  disciplinary  punish- 
ments, 538,  539-546 ;  summary 
of  von  Bar's  theory  of,  546. 

Criminal  Ordinance  of  1670 
(France),  266,  268. 

Criminal  Ordinances  of  Philip  II  of 
1570  (Netherlands),  304. 

Customary  law,  119,  123. 

Damhouder,  Jodocus,  224,  306. 

Dankwardt,  his  theory  of  criminal 
law,  443,  n.  3. 

Daub,  his  theory  of  criminal  law,  469. 

Death  penalty,  in  Greek  criminal 
law,  6,  n.  7  ;  in  Roman  criminal 
law,  opposition  to,  28 ;  increased 
use  of,  34 ;  demanded  by  the 
Church,  55 ;  due  to  caprice  of 
Emperors,  55 ;  in  primitive  Ger- 
manic criminal  law,  59,  n.  9  ;  under 
the  Merovingians,  71 ;  in  medie- 
val Germanic  law,  108,  n.  8,  109 ; 
in  medieval  French  law,  188 ;  in 
Germanic  law  in  the  later  1500  s 
and  the  1600  s,  239 ;  in  France 
from  the  1500  s  to  the  Revolution, 
269  ;  in  Scandinavia,  295  ;  in  the 
Netherlands,  309 ;  according  to 
Plato,  383  ;  according  to  Beecaria, 
414 ;  according  to  de  Maistre, 
466,  n.  10 ;  according  to  Sehleier- 
maeher,  467  ;  according  to  Rothe, 
469.  n.  23. 

Declaration  of  the  Rights  of  Man, 
320. 


Defamation,  1()9. 

Defamatory  libels,  289. 

Defense  of  society,  object  of  punish- 
ment, 509 

"Dehts",  265,  419. 

Denmark,  367. 

Despotism  of  rulers  in  the  1.500  s 
and  the  1600  s  in  Germany,  229. 

Determinism,  theory  of  reformation 
founded  upon,  405,  442. 

Deterrence,  as  object  of  punishment, 
381 ;  in  Spinoza's  theory,  405  ; 
in  Pufendorf's  theory,  407 ;  in 
Leibnitz's  theory,  410 ;  in  Thom- 
asius'  theory,  411;  in  Becearia's 
theory,  414  ;  in  F^ilangieri's  theory, 
416 ;  in  Globig  and  Huster's 
theory,  417 ;  in  Servin's  theory, 
418 ;  in  Fichte's  theory,  425 ; 
through  threat  of  law,  Feuerbaeh's 
theory  of,  430 ;  in  Bentham's 
theory,  435 ;  Feuerbaeh's  theory 
of,  modified  by  Bauer,  439 ;  reac- 
tion against  Feuerbaeh's  theory  of, 
441 ;  in  the  "restitution"  theory, 
447  ;  in  Stahl's  theory,  465  ;  in 
Abegg's  theory,  472 ;  in  Berner's 
theory,  481 ;  in  von  ICirchmann's 
theory,  487 ;  theory  of,  has  been 
gaining  adherents,  488,  n.  7 ;  in 
von  Bar's  theory,  509 ;  defects 
of  theory  of,  514;  in  Riimelin's, 
523,  n.  9. 

Disapprobation,  ethical,  as  a  neces- 
sary element  of  morality,  500 ;  of 
act"  and  author,  501 ;  the  possible 
and  proper  methods  of  expressing, 
501 ;  pubUc,  502  ;  is  not  retribu- 
tion, 504 ;  various  phases  of,  as 
punishment,  506 ;  active,  the 
essential  matter  in  punishment, 
508  ;  private  vengeance  as  an  ex- 
pression of,  509 ;  the  idea  of,  ex- 
pressed by  various  \VTiters,  513. 

Disciplinary  punishments,  538,  539  ; 
lack  of  definiteness  of,  540 ;  rela- 
tion of,  to  the  public  criminal  law. 
541 ;  effect  of  conviction  by  the 
public  criminal  law,  543 ;  differ- 
ence of  the  public  criminal  law 
and,  in  attitude  towards  the  of- 
fender, 544;  other  varieties  of, 
546. 

Disobedience,  an  o^ense,  516. 

Disorderly  behaWor  during  di^-ine 
service,  281. 

Divine  justice,  idea  of,  in  punish- 
ment, 381,  464. 

"Dolus",  11,  n.  1.  52,  433. 

Draft  Code  of  1909  (Germany),  362. 

DueUing,  235,  283,  511,  n.  4,  536,  n.  5. 

Dühriug,  490,  501. 


552 


INDEX 


Durantis,  Guilielmus,  206. 
Duress  of  imprisonment,  283. 
Duty  to  punish,  386,  399,  493,  499, 
510 ;    Hegel's  discussion  of,  463. 

"Encis",  165. 

Epicureans,  the,  388. 

EquaUty  before  the  law,  103. 

Ethical  judgment  as  a  necessary  ele- 
ment of  moraUty,  500. 

Excommunication,  91,  124;  as  the 
foundation  of  the  criminal  law 
of  the  Church,  79. 

Exile,  in  Greek  law,  6,  n.  7 ;  in 
Roman  criminal  law,  29,  31,  32; 
in  medieval  Germanic  law.  111; 
in  France,  274 ;  and  outlawry, 
510.  See  Banishment,  Out- 
lawry. 

Expediency  and  justice  in  punish- 
ment, 520. 

Extenuating  circumstances,  158, 
339,  342,  357,  359. 

Extortion  and  malversation  in  office, 
283. 

Faber,  Antonius,  307. 

False  witness,  74,  288. 

Falsification,  287. 

Family,  crimes  against,  169. 

Farinacius,  Prosper,  224,  n.  2,  307. 

Feudal  offenses,  179. 

Feuds,  97,  120. 

Feuerbach,  326,  428. 

Fichard,  Joh.,  225. 

Fichte,  424. 

Filangieri,  his  theory  of  criminal  law, 
416. 

Fines,  private  and  public,  in  Scandi- 
navian law,  120,  121,  123,  126, 
130 ;  forty-mark  and  three-mark 
causes,  132  ;  in  Swiss  law,  144  ; 
for  offenses  of  procedure,  in  medi- 
eval French  law,  176 ;  use  of,  in 
medieval  French  law,  193;  in 
France,  from  the  1500  s  to  the 
Revolution,  275  ;  criminal,  police, 
and  civil,  276. 

Finland,  369. 

Fiscal  offenses,  176. 

Forgery,  173,  287. 

Forgiveness,  498,  503. 

Formal  crime,  65. 

Fortv-mark  and  three-mark  causes, 
128,  130,  132. 

France,  medieval  criminal  law,  no 
theory  of,  in  Custumals,  146 ; 
theory  and  practice  of  punisliment 
in,  146-152;  stress  laid  upon  in- 
tention in,  152 ;  criminal  prose- 
cutions against  animals,  allowed 
by,  154  ;   no  theory  of  attempt  in, 


157  ;  second  trial  of  same  offense 
not  allowed  by,  157 ;  precau- 
tions in,  to  prevent  ill-founded 
prosecutions,  157 ;  extenuating 
circumstances,  158;  punishment 
of  accomplices,  1.59  ;  punishment 
of  concealers  of  crime,  160;  limi- 
tations of  principle  of  personal 
crime,  161 ;  specific  crimes,  161- 
187 ;   punishments,  187-197. 

France,  from  the  1500  s  to  the  Revo- 
lution, criminal  law  underwent  no 
change  from  the  1200  s  to  the 
1700  s,  259  ;  general  features,  259  ; 
no  Criminal  Code,  in  the  Old  Re- 
gime, 260;  Roman  princnples  in, 
260 ;  no  science  of  criminal  law  in. 
261  ;  relation  of  criminal  law  to  pro 
cedure  in,  262  ;  discretionary  char- 
acter of  the  penal  S3'stem,  262 ; 
conception  of  crime  unscientific, 
265  ;  classification  of  crimes,  266  ; 
penalties,  268  ;  the  several  crimes 
and  their  punishments,  278. 

France,  from  the  Revolution,  com- 
parison of  the  criminal  law  of  the 
Old  Regime  and  tlie  modern  crimi- 
nal law,  315;  effect  of  new  ideas 
of  reason  and  hunuinity,  317  ;  re- 
forms on  the  eve  of  the  Revolu- 
tion, 319;  the  Code  of  1791  and 
the  Code  of  Brumaire,  320 ;  the 
Penal  Code  of  1810,  335 ;  princi- 
pal changes  in  penal  law  during 
the  1800  s,  338. 

Fraudulent  banlcruptcy,  288. 

Frederick  II  of  Prussia,  Statutes  of, 
250. 

"Free  places",  112,  n.  2. 

French  Revolution.  See  Revolution. 

Freytag,  472,  n.  8. 

"Friedbrüche",  107. 

"Frieden  ",  confusion  resulting  from 
the  term,  107. 

Gabba,  454. 

Gail,  Andreas,  307. 

Galleys,  252,  n.  7,  269. 

Gambling,  ordinanc^es  against,  175. 

Game  and  fish  laws,  offenses  against, 
174. 

Gandino,  Albertus  de,  206,  307. 

Germanic  conception  of  the  rela- 
tion of  the  individual  to  the  State, 
18. 

Germany,  criminal  law,  primitive, 
prominence  of  the  element  of  ven- 
geance in,  57 ;  outlawry  in,  62 ; 
crime  a  breach  of  peace  with  the 
party  injured,  64  ;  formal  crime  in, 
65 ;  breach  of  tlu>  pi'ace  of  the 
land,  66  ;   composition  of  offenses, 

53 


INDEX 


67 ;  littlo  consideration  given  to 
intention  in,  OS ;  the  (element  of 
secrecy  in,  70;  influence  of  the 
early  kings  in,  71 ;  the  Capitu- 
laries of  the  Carolingians,  72 ; 
the  royal  ban,  73 ;  influence  of 
the  punishment  of  slaves,  74 ; 
effect  of  loss  of  freedom  by  mass 
of  people,  74. 

Germany,  criminal  law,  medieval, 
result  of  the  degradation  of  the 
mass  of  the  people,  95  ;  feuds  and 
self-redress,  97;  "Landfrieden", 
98 ;  changes  in  the  theory  of  spe- 
cific crimes,  101 ;  equality  before 
the  law,  103  ;  effect  of  changes  in 
the  law  of  proof,  104 ;  arbitrary 
character  of  the  law,  106 ;  con- 
fusion resulting  from  the  term 
"Frieden",  107;  reversion  to 
primitive  conceptions,  108  ;  sever- 
ity of  the  law,  108  ;  application  of 
Mosaic  law,  108 ;  cruelty  of  the 
punishments,  109 ;  failure  of  the 
law,  110 ;  incidental  circumstances 
having  a  demoralizing  influence, 
112;  private  settlement  in  cases 
of  crime,  114  ;  the  "Grace"  of  the 
rulers,  115;  other  peculiar  cus- 
toms, 117  ;  influence  of  accidental 
circumstances,  117;  uncertainty 
of  the  court  procedure,  117. 

Germany,  criminal  law  in  the  early 
1500  s,  permanent  features  of, 
204  ;  first  came  into  contact  with 
the  Roman  criminal  law  in  Italv, 
204;  early  books  of,  207;  the 
"Bambergensis",  208;  the  "Car- 
olina ",  215. 

Germany,  criminal  law  in  the  late 
1500  s  and  the  1600  s,  relation  of 
the  Carolina  to  the  Reformation, 
221 ;  the  Reformation  unfavorable 
to  the  progress  of,  221 ;  no  scien- 
tific administration  of,  during  the 
1500  s,  223;  work  supplementary 
to  the  Carolina,  223 ;  the  juris- 
consults and  the  law  faculties, 
225  ;  domination  of  theology,  226  ; 
witchcraft,  226 ;  despotism  of 
rulers,  229  ;  lese  majeste,  230 ; 
abuse  of,  232,  234,  n.  2 ;  mitiga- 
tion of  punishments  and  interces- 
sion, 234,  n.  3  ;  field  of,  abandoned 
by  legislation,  235  ;  evasion  of  the 
Carolina,  235 ;  rise  of  imprison- 
ment as  a  penalty,  237 ;  change 
in  law  of  proof,  239  ;  doctrines  as 
to  judicial  discretion  in  defining 
crimes,  240. 

Germany,  criminal  law  in  the  1700  s, 
gradual  suppression  of  witchcraft, 


243;  emancipation  from  theology 
and  the  Mosaic  law,  244 ;  <;ffect 
of  doctrin(!  of  Law  of  Nature,  245  ; 
more  ample  sources  and  methods 
us(!d,  245  ;  aband(mm(!nt  of  com- 
mentary form  of  exposition,  240 ; 
treated  apart  from  Roman  law, 
246 ;  early  treatises  on,  246  ;  af- 
fected by  new  theories  of  criminal 
law  emanating  from  Italy  and 
France,  247  ;  legislation  and  codes, 
248. 
Germany,  reasons  for  her  reception 
of  the  Roman  law,  202 ;  early 
law  books  introducing  the  Italian 
legal  doctrines  into,  207  ;  freedom 
of  religious  faith  not  achieved  by 
the  Reformation,  222  ;  the  litera- 
ture of  the  1500  s  and  1600  s,  223  ; 
scantiness  of  legislation  in  the 
later  1500  s  and  the  1600  s,  233 ; 
the  new  direction  given  to  German 
criminal  theory  in  the  late  1700  s, 

325  ;     Grolmann  and  Feuerbach, 

326  ;  Bavarian  Code  of  1813,  330 ; 
the  criminal  Codes  of  the  first 
half  of  the  1800  s,  343;  influence 
of  the  political  agitation  of  1848 
347 ;  legislation  in  Prussia,  348 
the  Bavarian  Code  of  1861,  352 
other  Codes,  353 ;  progress  to- 
wards greater  legal  unity,  353  ;  the 
Criminal  Code  of  the  North  Ger- 
man Confederation,  354 ;  other 
criminal  laws,  361 ;  the  Draft 
Code  of  1909,  362;  criminal 
theories  in,  from  Hegel  to  Binding, 
460-494. 

Geyer,  his  theory  of  criminal  law, 
457. 

Gilhausen,  Ludwig,  224. 

Glaser,  criminalist,  365. 

Globig  and  Huster,  essay  on  "Crimi- 
nal Legislation  ",  247,  311 ;  theory 
of  criminal  law,  417. 

Glossators,  206. 

Glunek,  Hye  von,  364. 

Gomez,  Antonio  de,  307. 

"Gottesfrieden  ",  the,  98,  n.  5. 

"Grace"  of  rulers,  115. 

Greece,  criminal  law  of,  6,  ti.  7,  19; 
the  beginnings  of  speculation  on 
criminal  law  in,  381 ;  the  Sophists, 
381 ;  Socrates,  382  ;  Plato,  383  ; 
Ai-istotle,  386;  the  Stoics,  388; 
the  Epicureans,  388 ;  Scepticism, 
389 ;  Neoplatonism,  390. 

Groenewegen,  S.  van,  307. 

Grolmann,  his  theory  of  criminal 
law,  326,  427. 

Groos,  his  theory  of  criminal  law, 
442. 


554 


INDEX 


Grotius,  Hugo,  307,  397,  398,  513. 
"Gruet-apens  ",  164. 

Hälschxer,  his  theory  of  criminal 
law,  477,  526,  532,  n.  24. 

"Ilalsgt'riehtsordnung",  for  Radolf- 
zell,  207. 

"Handfrieden  ",  99. 

"Handless  risk",  126. 

Hanoverian  Code  of  1840,  344. 

Hard  labor,  36. 

Hartmann,  E.  von,  490,  499,  501. 

Hasselt,  J.  J.  van,  307. 

Haus,  his  theoi-y  of  criminal  law,  454. 

"Hausfrieden",  102. 

Heff,  his  theory  of  criminal  law,  451. 

Heffter,  his  theory  of  criminal  law, 
473. 

Hegel,  his  theory  of  the  negation  of 
■wrong,  460 ;  effects  of  his  philoso- 
phy of  criminal  law,  464  ;  later  de- 
velopments of  his  theory,  470 ; 
combination  of  his  and  Fichte's 
theories,  482  ;  merit  of  his  theory, 
498 ;  his  distinction  of  tort  and 
crime,  525. 

Heinze,  his  theory  of  criminal  law, 
482. 

Henke,  H.  W.  E.,  452. 

Henrici,  454. 

Herbart,  his  theory  of  criminal  law, 
455. 

Heresy,  92,  ISO,  279. 

Hertz,  Ed.,  .525,  n.  1. 

Hesse,  Criminal  Code  of  the  Grand- 
duchy  of,  346. 

Heyssler,  531. 

Hierocles,  390. 

High  treason,  282. 

Highway  robbery,  164. 

Hippolvtus  de  Marsiliis,  307. 

Hobbes,  Thomas,  401. 

Hogendorf,  Dr.  Didarik  van,  308. 

Holmhernsson,  Prof.,  368. 

Homicide,  early  suppression  of  ven- 
geance in  cases  of,  at  Rome,  1 1 ; 
Roman  laws  relating  to,  20,  n.  12  ; 
in  provincial  Codes  of  Scandinavia, 
125  ;  made  a  crime  by  intent,  152  ; 
in  French  medieval  law,  165;  in 
France  from  the  1500  s  to  the  Rev- 
olution, 285.  See  Murder,  Max- 
slaughter. 

Honor,  personal,  143. 

Honor-penalties,  145. 

Houses  of  ill-fame,  forbidden,  in 
medieval  French  law,  175. 

Howard,  John,  327. 

Hunting,  laws  against,  174. 


InnKiNG,  VON,  515,  519. 
Imprisonment,  6,  ?i.  7,  35,  110,  n.  19, 


191  :  rise  of,  as  a  penalty,  237  ;  ac- 
cording to  the  Austrian  Code  of 
Joseph  11,  2.53  ;  in  France  from  the 
1500  s  to  the  Revolution,  277; 
in  the  Netherlands,  309,  310;  in 
Austria,  364. 

Incantation,  183. 

Incest,  286. 

Individual,  subordination  of,  5 ; 
relation  of,  to  the  State,  the  Ro- 
man conception,  17  ;  relation  of, 
to  the  State,  the  Germanic  con- 
ception, 18  ;  rights  of,  contribu- 
tion of  Roman  criminal  law  to  the 
establishment  of,  19. 

Infamous  punishments,  275. 

Infamy,  its  relation  to  Roman  crimi- 
nal law,  6,  n.  7,  24,  37 ;  in  medie- 
val Germanic  law,  111;  in  France 
from  the  1500  s  to  the  Revolution, 
277. 

Infanticide,  166. 

Instigation  to  crime,  103,  130. 

Insults,  167,  289. 

Intention  of  crime,  little  considera- 
tion given  to  element  of,  in  primi- 
tive Germanic  law,  68  ;  explana- 
tion of  lack  of  consideration  gi\-en 
to,  69 ;  necessary  to  crime,  in 
French  medieval  law,  1.52 ;  does 
not  alone  constitute  crime,  15(). 

Interdict,  the,  91. 

Italian  jurists,  204. 

.Joseph  II  of  Austria,  Code  of,  251, 
311. 

-Jousse,  318,  n.  12. 

Jurisprudence  of  the  Roman  Empire, 
21. 

Jurists,  influence  of,  in  Roman  crimi- 
nal law,  ,50. 

"Jus  Papirianum  ",  13,  «.  6. 

Justice,  to  the  offender,  expressions 
of  disapproval  are,  504  ;  of  punish- 
ment, tradition  furnishes,  517  ;  and 
expedienc3%  in  punishment,  520. 

Kant,  Immanuel,  422. 

Kersterman,  J.  L.,  307. 

Kirchmann,  von,  his  theorj-  of  crimi- 
nal law,  486. 

Kitz,  his  theorj'  of  criminal  law,  481. 

"Klagspiegel",  the,  207. 

Köstlin,  his  theory  of  criminal  law, 
473. 

Krause,  K.  C.  F.,  444. 

Kress,  240,  243,  245. 

Laistner,    his    theory    of    crimiual 

law,  493. 
"Landfrieden",  the,  98. 


555 


INDEX 


Larceny.     Rc.c  Theft. 

Law,  attitude  of  the  early  Chris- 
tians toward,  ;i92  ;  and  morality, 
in  criminal  law,  according  to 
Pufendorf,  4ÜS ;  Cocceji,  411; 
Filangicri,  416;  Servin,  419; 
Kant,  422;  Fichte,  424;  Grol- 
mann,  427 ;  Feuerbaeli,  433 ; 
Homagnosi,  437  ;  Oersted,  438  ; 
Bauer,  439  ;  Schulze,  441 ;  Schop- 
enhauer, 488  ;  morality  as  the 
basis  of,  499. 

Law-faculties,  226. 

Leeuwen,  Simon  van,  307,  310. 

Leibnitz,  409,  .513. 

Lese  majcste,  in  ancient  Rome,  41  ; 
and  "  perduellio  ",  51 ;  in  French 
medieval  law,  163 ;  in  Germanic 
law  in  the  later  1500  s  and  the 
1600  s,  2.30;  in  France  from  the 
1.500  s  to  the  Revolution,  282. 

*'Lese  majeste  divine",  279. 

"Lese  majeste  humaine",  281. 

Lex  .Julia  de  adulteriis,  ,39. 

"Liability  Law",  the,  for  the  Ger- 
man Empire,  528. 

Libels.     See  Defamatory. 

Lieber,  516. 

Linden,  J.  van  der,  307. 

Liszt,  Franz  von,  362,  490. 

Locke,  .John,  409. 

Lübeck,  Criminal  Code  of,  352. 

Lynch  law,  512. 

Magic,  279. 

Maiming  punishments,  273. 

Maistre,  Joseph  de,  466,  n.  10. 

"Malleus  maleficarum  ",  227. 

Manslaughter,  112;  and  mxirder, 
102;  compensation  for,  114;  a 
forty-mark  cause,  132 ;  in  Scan- 
dinavian town  Codes,  141. 

Market-town  laws,  140. 

Marriage,  crimes  against,  170,  286. 

Masks,  the  wearing  of,  285. 

Matthaeus,  Antonius,  245,  307. 

' '  Maximilianisehe  Halsgerichtsord- 
nungen ",  207. 

Medieval  Germanic  law.  See  Ger- 
many, Criminal  Law,  Medieval. 

Meisler,  308. 

Merkel,  his  theory  of  criminal  law, 
473,  475,  .528. 

Meyer,  Hugo,  .501, 7i.  2,  513, 522,  n.  7, 
523,  n.  9.  537. 

Misdemeanors,  149 ;  according  to 
the  Code  of  Brumaire,  322; 
according  to  the  Bavarian  Code  of 
1813,  330 ;  crimes  changed  to, 
in  France,  339 ;  according  to  the 
Prussian  Code  of  1851,  350 ;  in 
Austrian  Code,  364. 


Mitigating  circumstances,  234,  n.  3, 
237. 

Mitigation  of  jM'nalty,  339. 

Mittermaier,  4.54. 

Mohl,  4.54. 

Monopoly,  a  form  of  lese  majeste, 
1()4. 

Moorman,  J.,  307. 

Moral  disapproV)ation,  von  Bar's 
theory  of,  497-547.  .S'ee  Dis- 
approbation. 

Morality,  as  the  basis  of  law,  499 ; 
ethical  judgment  as  a  necessary 
element  of,  .500 ;  and  public  dis- 
approval, .502 ;  in  its  narrower 
sense,  and  criminal  law,  523. 
See  Law. 

Moralizing  tendencies  of  judges, 
104. 

Mosaic  law,  in  law  of  Christian 
Church,  93 ;  apphcation  of,  in 
medieval  Germanic  law,  108  ;  and 
witchcraft,  227 ;  emancipation 
from,  in  the  1700  s,  244. 

Mulcts,  Church,  124. 

"Multse  irrogatio",  17. 

Murder,  and  manslaughter,  102 ; 
in  Scandinavian  law,  120,  135 ; 
in  French  medieval  law,  164. 
See  Homicide,  Manslaughter. 

Mutilation,  as  a  punishment,  189, 
238. 

Nature,  Law  of,  245,  401,  402,  405, 
407. 

"Necessary  defense",  theory  of, 
436,  441. 

Negation  of  wrong,  Hegel's  and 
Daub's  theory  of  punishment  as, 
460,  469,  498. 

Negligence,  punishment  of,  41 ;  acts 
committed  through,  and  those 
committed  wdth  maUce,  103. 

Neoplatonism,  390. 

Netherlands,  sources  of  criminal  law 
in,  before  the  1.500  s,  301;  the 
Roman  law  in,  302 ;  the  Carolina 
and  Criminal  Ordinances  in,  304 ; 
general  features  of  the  criminal 
law  of,  from  later  medieval  times 
to  the  1700  s,  306;  character  of 
the  criminal  law  of,  for  this  period, 
308  ;  the  reform  movement  of  the 
later  1700  s,  310;  since  the  1800  s, 
365. 

"Norm"  theorv  of  punishment, 
475,  n.  11,  477,  492. 

North  German  Confederation,  Crim- 
inal Code  of,  354 ;  its  character, 
356  ;  opposition  to,  in  the  Reichs- 
tag, 356 ;  changes  in,  made  by 
the  Reichstag,  357 ;    criticism  of, 


556 


INDEX 


358 ;  becomes  code  of  the  Em- 
pire, 358 ;  the  Criminal  Law 
Amendment  Act  of  1876,  360 ; 
changes  in  other  paragraphs,  361. 
Norway,  368. 

Obstruction  of  Public  Justice, 
283. 

Oersted,  his  theory  of  criminal  law, 
438. 

Offenses,  criminal  and  contrary  to 
police  regulations  in  the  Austrian 
Code  of  Joseph  II,  253  ;  definitions 
of,  in  the  Prussian  Landrecht  of 
1794,  257 ;  against  reUgion  and 
the  Church,  279 ;  of  the  press, 
289  ;   in  Austrian  Code,  364. 

Oldekop,  236,  n.  10. 

Oldenburg  Criminal  Code,  of  1814, 
344  ;   of  1858,  352. 

Ortolan,  454. 

Outlawry,  how  far  the  most  primi- 
tive form  of  punishment,  62,  504, 
509 ;  entailed  by  breach  of  the 
peace.  111,  n.  24 ;  conditional,  112  ; 
in  Scandinavian  law,  134,  141, 
293. 

Pandering,  286. 

Pardon,  executive  power  of,  323. 

Parricide,  285. 

Parsimony,  the  principle  of,  in  pun- 
ishment, 519. 

"PaterfamiUas  ",  power  of,  23. 

Peace,  special  relations  of,  as  relating 
to  the  commission  of  crime,  66, 
123,  142. 

Peace-law,  Germanic,  142. 

Peace  money,  61. 

Peculation,  283. 

Penal  Code  of  Joseph  IT,  251,  311. 

Penal  Code  (France),  of  1791,  321 ; 
of  1810,  335. 

Penal  statutes,  in  later  Roman  Em- 
pire, 54. 

Penalties.     See  Punishment. 

Penance,  law  of,  characteristics  of, 
81. 

Penitentiaries,  237. 

Perdition.     See  Treason. 

"Perduellio  ",  16;  and  lese  majeste, 
51. 

Perjury,  288. 

Persecution  of  the  Christians,  43, 
53. 

Pillory,  111,  190. 

Plato,  383. 

Pledge,  theory  of,  in  criminal  law, 
489. 

"Pledged  peace",  99,  142. 

"Poenje  medicinales  ",  91. 

"Poenae  vindieativse  ",  91. 


Poisoning,  285. 

Police  regulations,  violations  of, 
533  ;  three  tj'pes  of,  534  ;  relation 
of,  to  crime,  535,  537 ;  general 
characteristics  of,  536. 

PoUtical  crimes,  373. 

Premeditation,  acts  committed  with, 
103. 

Press,  offenses  of  the,  289. 

Press  Law,  the,  290. 

Preuschen,  von,  454. 

Prevention  of  crime,  88,  n.  20. 

Priesthood,  influence  of,  in  criminal 
law,  6,  7. 

Prison  breaking,  283. 

Prison  reform,  327,  509. 

Private  law.     See  Tort. 

Private  settlement,  114. 

Procedure,  offenses  of,  176 ;  pro- 
portioned to  seriousness  of  offense, 
537. 

Profanity,  280. 

Proof,  law  of,  changes  in,  104 ; 
combinations  of  Germanic  and 
Roman  rules  of,  117;  change  in 
law  of,  in  Germany  in  the  later 
1500  s  and  the  1600  s,  239. 

Property,  crimes  against,  171,  287. 

Property-system,  ofi"enses  concern- 
ing, 176. 

Prosecutions,  initiated  bj^  private 
parties,  desirability  of,  511. 

Prostitutes,  108. 

Provincial  Codes,  in  Scandinavian 
law,  125. 

Prussia,  legislation  in,  348. 

Prussian  Criminal  Code,  of  1847, 
349;   of  1851,  349. 

Prussian  Landrecht  of  1794,  254. 

Pubhc  accusations,  in  Scandinaxnan 
law,  119,  294;  in  medieval 
French  law,  150. 

Public  ban,  63,  n.  17. 

Pubhc  disapproval,  502. 

Public  opinion,  120,  310. 

"Public  Order"  penalties,  539. 

Public  prosecutor  and  prosecution, 
260,  262. 

Pu])Ii('  punishment,  in  German  crim- 
inal law,  .58,  61,  /(.  14,  71,  75,  76, 
97;  in  Scandinavian  law,  126, 
132,  134,  137. 

Pufendorf,  his  theory  of  criminal 
law.  325,  406. 

Punishment, 

in  Roman  criminal  law  : 

in  statutes  of  later  Republic, 
28;  e.\ile,  29,  31,  32;  death, 
28,  34;  imprisonment,  35; 
hard  labor,  36;  other  methods, 
37;  infamy  and  confiscation  of 
property,   24,   37 ;     of  attempt 


557 


INDEX 


at  crime,  41 ;  of  acccssorios  to 
crime,  41  ;  of  negligence,  41 ; 
in  imperial  criminal  law,  as 
affected  by  class  privilege,  45 ; 
as  affected  by  administration 
of  justice  by  state  officials,  47  ; 
evidencing  disregard  for  the 
criminal,  48 ;  as  influenced  by 
jurists,  50 ;  as  influenced  by 
the  Church,  53,  55,  92;  as 
influenced  by  caprice  of  Em- 
perors, 55. 

In  German  criminal  law  : 

public  or  State,  58,  61,  n.  14, 
71,  75,  76,  97;  confiscation  of 
property,  61,  n.  14  ;  outlawry  not 
the  most  primitive  form  of,  62  ; 
of  unchastity,  65,  n.  26 ;  the 
Capitularies  of  the  Carolingians, 
72 ;  the  royal  ban,  73 ;  other 
forms  of,  73 ;  of  slaves,  influ- 
ence of,  74  ;  effect  of  exorbitant 
damages,  75 ;  cruelty  of,  in 
Middle  Ages,  109 ;  degrading 
forms  of.  111,  n.  22  ;  a  means  of 
restoring  public  law  and  order, 
120 ;  according  to  the  Bam- 
bergensis,  211 ;  mitigation  of, 
in  the  later  1500  s  and  the 
1600  s,  234,  n.  3,  237;  rise  of 
imprisonment  as  a  form  of,  237  ; 
extraordinary  (or  suspicion), 
239  ;  according  to  the  Austrian 
Code  of  Joseph  11,  252  ;  accord- 
ing to  the  Austrian  Code  of 
1803,  258  ;  in  the  North  German 
Confederation,  357. 

In  Scandinavian  criminal  law : 
Church,    124 ;     public  and  pri- 
vate, 126,  132,  134,  137 ;  in  the 
1500  s,  293. 

In  French  criminal  law : 

early  confusion  in  notions  of, 
146  ;  attempts  at  classification 
of  forms  of,  148 ;  decrease  in 
rigor  of  idea  of  right  of,  150, 
188 ;  bases  of  right  of,  in  Middle 
Ages,  151 ;  arbitrariness  of, 
151 ;  for  usurers,  186 ;  in 
later  Middle  Ages,  187-197; 
discretionary,  264 ;  various 
forms  of,  from  the  1500  s  to  the 
Revolution,  268 ;  of  various 
crimes,  278 ;  according  to  the 
Declaration  of  the  Rights  of 
Man,  320 ;  according  to  the 
Code  of  1791,  321  ;  according 
to  the  Code  of  Brumaire,  322 ; 
according  to  the  Penal  Code  of 
1810,  337 ;  mitigation  of,  since 
1810,  339;  for  the  reeidiAast, 
341 ;     repressive,    seclusionary, 

558 


and     prmitentiary,     341,     342; 
individualization  of,  342. 

In  Swiss  criminal  law,  144. 

Various  objects  of,  381,  488  ;  con- 
sidered as  benefit  to  the  wrong- 
doer, 383,  387,  390,  468,  469, 
472 ;  deterrence  as  object  of, 
40.5-523,  n.  9  (See  Deter- 
rence)  ;  reform  as  object  of,  391, 
407,  410,  411,  441,  442,  46.5,  481, 
509,  514  ;  retribution  as  object 
of,  398-523,  ri.  9  [See  Retri- 
bution) ;  justification  and  obli- 
gation in,  386 ;  as  a  negation 
of  wrong,  460 ;  the  Sophists' 
theory  of,  381  ;  Plato,  383- 
386  ;  Aristotle,  386  ;  the  Stoics, 
388  ;  the  Epicureans,  388 ;  the 
Roman  philosophers,  389 ; 
Thomas  Aquinas,  393 ;  Gro- 
tius,  398;  Hobbes,  402;  Spi- 
noza, 404  ;  Pufendorf ,  406  ; 
Locke,  409;  Leibnitz,  409; 
Cocceji,  410;  Thomasius,  411 ; 
Wolff,  411 ;  Rousseau,  412 ; 
Beccaria,  414 ;  Beccaria's  in- 
fluence on  views  of,  415  ;  Filan- 
gieri,  416  ;  Globig  and  Huster, 
417;  Servin,  418;  Wieland, 
420;  Kant,  422;  Pichte,  425; 
Grolmann,  427 ;  Feuerbach, 
429  ;  Thibaut,  433  ;  Bentham, 
435 ;  Romagnosi,  437 ;  Oersted, 
438;  Bauer,  439;  Schulze,  441 ; 
Steltzer,  441;  Groos,  443; 
Krause,  444 ;  Ahrens,  445 ; 
Röder,  446 ;  according  to  the 
compensation  theory  (Welcker), 
447 ;  Hepp,  451 ;  Zachariä, 
451 ;  Henke,  452 ;  combina- 
tion of  absolute  and  relative 
purposes  of,  452  ;  as  a  negation 
of  wrong  (Hegel,  Daub),  460, 
469 ;  theological  tendencies 
(Stahl,  Schleiermaeher.  Daub), 
464 ;  later  developments  of 
Hegel's  theory,  470;  Heinze, 
482 ;  von  Kirchmann,  486 ; 
Schopenhauer,  487 ;  Diihring, 
E.  von  Hartmann,  von  Liszt. 
490;  Laistner,  493 ;  defects  of 
absolute  and  relative  theories 
of,  498;  according  to  Seber, 
501,  n.  3  ;  outlawry  the  original, 
504 ;  as  disapprobation  and  as 
retribution,  and  Christianity, 
506 ;  various  phases  of  disap- 
probation as.  506;  reprimand, 
506,  n.  9  ;  undetermined,  507  ; 
the  true  purposes  of,  508 ;  ref- 
ormation not  the  primary 
element   in,    509;     a   right    of 


INDEX 


society  rather  than  of  the  State, 
510  ;  the  idea  of  disapprobation 
as,  expressed  by  various  writers, 
51.3  ;  kinds  and  methods  of,  515  ; 
degree  of,  517 ;  what  acts 
deserve,  518 ;  the  principle  of 
parsimony  in,  519  ;  expediency 
and  justice  in,  521  ;  discipHnary, 
538,  539-546;  "pubhe  order", 
539 ;  confirmation  that  it  is 
moral  disapprobation  in  word 
"Strafe  ",  547. 

Purgation,  oath  of,  117. 

Purification,  as  an  object  of  punish- 
ment, 381. 

QuiRÖs,  C.  Bernaldo  de,  494. 
Quistorp,  308. 

Rabenius,  Professor,  369. 

Rape,  169,  286. 

Recidivists,  340,  341. 

Reformation,  the,  relation  of  the 
Carolina  to,  221 ;  freedom  of 
religious  faith  not  achieved  by, 
222  ;  unfortunate  results  of,  223  ; 
period  of,  in  Switzerland,  297. 

Reformation  of  prisoner  through 
punishment,  methods  of  obtain- 
ing, 340;  theory  of,  381;  pur- 
pose of  Deity,  391  ;  in  Pufen- 
dorf's  theory,  407 ;  in  Leibnitz's 
theory,  410 ;  in  Thomasius'  the- 
ory, 411 ;  in  Steltzer's  theory, 
441 ;  theory  of,  founded  upon 
determinism,  442 ;  in  Stahl's 
theory,  465 ;  in  Berner's  theory, 
481;  in  Kitz's  theory,  481;  not 
the  primary  element  in  punish- 
ment, 509  ;  an  impossible  theorv, 
514. 

"Relative"  theories  of  criminal 
law,  379,  n.  2 ;  combination  of 
absolute  and  relative  purposes 
of  punishment,  452,  478 ;  in 
Abegg's  theory,  472 ;  in 
Ileinze's  theory,  486;  and  abso- 
lute principle,  controversy  be- 
tween, 492  ;    defects  of,  498. 

Religious  tolerance,  221,  244. 

Remission  of  punishment,  196,  228, 
232. 

Reprimand,  506,  n.  9. 

Reprobation.     See  Disapprobation. 

Rescission  theory  of  punishment  of 
Kitz,  481. 

Responsibility,  theory  of,  387. 

"Restitution"  theorv  of  punish- 
ment, 379,  11.  2,  447. 

Retaliation,  as  an  object  of  punish- 
ment, 381,  505;  impulse  towards, 
490. 


Retribution,  as  object  of  punish- 
ment, 381 ;  in  Hugo  Grotius' 
theory,  398,  401  ;  in  Kant's 
theory,  416,  422 ;  in  Zachariä's 
theory,  451  ;  in  Henke's  theory, 
452 ;  theory  of  a?sthetic  judg- 
ment, Herbart's,  455 ;  in  Stahl's 
theory  464 ;  in  de  JMaistre's 
theory,  466,  n.  10 ;  in  Abegg's 
theory,  471 ;  in  Köstlin's  theorjs 
474  ;  in  Merkel's  theory,  476  ;  in 
Berner's  theory,  480  ;  disapproval 
is  not,  504 ;  in  von  Bar's  theorj% 
509  ;   in  Meyer's  theory,  513. 

Revolution,  the  French,  French 
reforms  of  the  period,  315-324; 
German  reforms  of  the  period, 
325-332. 

Right,  Hegel's  discussion  of,  463. 

Röder,  his  theory  of  criminal  law, 
446. 

Roffredus,  206. 

Romagnosi,  his  theory  of  criminal 
law,  436. 

Roman  criminal  law,  influence  of 
religious  element  in,  7 ;  not  a 
theocratic  system,  10 ;  early  sup- 
pression of  vengeance  in,  11 ; 
"perduellio",  16;  "mullae  ir- 
rogatio",  17;  contribution  of,  to 
the  establishment  of  individual 
rights,  19;  statutes,  ^20,  ?(.  12 ; 
jurisprudence  of  the  Empire,  21 ; 
real  explanation  of  arbitrary  na- 
ture of,  21  ;  law  of  Twelve 
"Tables,  22;  power  of  the  "pater- 
familias" as  supplement  to,  23; 
the  censorship,  24 ;  infamy,  24, 
37;  "actiones  populäres",  25; 
other  criminal  legislation  of  the 
Republic,  26 ;  statutes  of  the  later 
Republic,  25;  punishment  in 
statutes  of  later  Republie,  28; 
gradual  change  in  tlie  character 
of,  30;  punishment  by  exile,  29, 
31,  32;  capital  punishment,  28, 
34 ;  corporal  punishment,  35 ; 
imprisonment,  35 ;  liard  labor, 
36;  other  methods  of  puni.sh- 
ment,  37  ;  the  range  of,  39 ;  lese 
majeste,  41 ;  as  affected  by  class 
privilege,  45 ;  as  affected  by 
administration  of  justice  by  State 
officials,  47 ;  disregard  for  the 
criminal  in,  48 ;  reversion  in  the 
Empire  to  more  primitive  con- 
ditions, 49;  influence  of  jurists 
in,  50;  deterioration  of,  in  later 
Empire,  52 ;  influence  of  Chris- 
tianity on,  52,  54;  last  stages  of, 
55 ;  reasons  for  its  reception  hy 
Germany,  202;    defects  of,  204; 


559 


INDEX 


rooeption    by    the    Netherlands, 

;i()2. 
lloman,  conception  of  the  relation  of 

the  individual   to   the  State,  17 ; 

philosophy  and  criminal  law,  389. 
Rossi,  his  theory  of  criminal  law,  453. 
Rothe,  469,  n.  23. 
Rousseau,  J.  J.,  412. 
Royal  ban,  73. 
Riimelin,  523,  n.  9. 

Sacrilege,  279. 

Saxony,  Criminal  Code  of  the  King- 
dom of,  345. 

Scandinavia,   early  customary  law, 
1 19 ;     primitive     feuds    and    kin 
vengeance,     120;      private    fines, 
121 ;  system  of  public  and  private 
fines,   126 ;    limitation  of  private 
vengeance,  122 ;    Church   mulcts 
124 ;    the  provincial  Codes,   125 
growth  of  public  authority,  125 
procedure,  127 ;    accessories,  129 
elements  of  the  money  forfeitures 
130;     outlawry,    134,    141,    293 
other    public    punishments,    137 
penal  legislation  1300-1500,  139 
market-town  laws,    140 ;    in    the 
1500  s,    291;     private    vengeance 
prohibited  in,   291 ;    penalties  in 
the  1500  s,  293  ;   legislation  in  the 
1600  s,  294.      See  Denmark,  Fin- 
land, Norway,  Sweden. 

Scepticism,  389. 

Schleiermacher,  467. 

Schopenhauer,  487,  515. 

Schrassert,  J.,  307. 

Schulze,  G.  Ernst,  441. 

Sehwarzenberg,      Freiherr     Johann 
von,  208,  304. 

Seber,  501,  n.  3. 

Secrecy  in  crime,  70. 

Self-defense,  97,  125,  144,  152,  418, 
436,  479. 

Self-help,  143. 

Self-redress,  97,  123,  144. 

Servile  labor,  274. 

Servin,  his  theory  of  criminal  law, 
418. 

Settlement,  234,  n.  3. 

Simony,  280. 

"Sippe  ",  the,  58. 

Socrates,  382. 

Sodomy,  183. 

Sonnenfels,  Von,  416. 

Soothsaying,  45. 

Sophists,  the,  381. 

Sorcerv,  45,  183,  279. 

Sortilege,  279. 

Sparta,  criminal  law  of,  6,  n.  7. 

"Special   prevention"    theory,    416, 
420,  427. 


Spec,  Friedrich  von,  243. 

Si)in()za,  404. 

Spiritual  treason,  279. 

Stahl,  F.  .].,  464. 

State,  relation  of  the  individual  to, 
the  Roman  conception,  17;  rela- 
tion of  the  individual  to,  the 
(lermanic  conception,  18;  ad- 
ministration of  justice  through 
officials  of,  47 ;  punishment  a 
right  of  society  rather  than  of,  510  ; 
transference  of  right  of  punish- 
ment to,  510. 

Steltzer,  his  theory  of  criminal  law, 
441. 

Stoics,  the,  388. 

Stooss,  Professor,  375. 

"Strafe",  547. 

Subordination  of  the  individual,  5. 

Suicide,  104,  187,  286. 

Supplementary  punishments,  37. 

Suspension,  church  punishment,  91. 

Suspension  of  sentence,  342. 

Sweden,  368. 

Swindhng,  110. 

Switzerland,  the  common  law  of  the 
later  Middle  Ages,  142  ;  pledged 
peace  and  commanded  peace,  142  ; 
crimes,  144;  penalties,  144;  the 
Reformation  period,  297 ;  the 
1700  s,  298 ;  traditional  ideas  of 
Swiss  criminal  law  sur\i\ang  in  the 
1800  s,  299;  Codes  in  the  1800  s, 
370. 

"Taidigung",  114,  220. 

"TaUo",  in  Twelve  Tables,  13; 
Mosaic  criminal  law  frequently 
based  on,  93 ;  predominant  in 
South  Germany  in  Middle  Ages, 
108 ;  in  Switzerland,  145  ;  in  reign 
of  Frederick  the  Great,  251 ;  in 
Scandinavia,  296 ;  rejected  by 
Pufendorf,  407  ;  accepted  by  Coc- 
ceji,  410 ;  E.  von  Hartmann's 
view  of,  491 ;  in  beginning  of 
criminal  law,  505. 

Temporal  treason,  crimes  of,  281. 

Theft,  in  Roman  law,  14,  15,  40; 
and  secrecy,  70 ;  death  penalty 
for,  in  Germanic  law,  108.  x.  8; 
penalties  for.  in  Scandinavian  law, 
138 ;  grand  and  petty  larceny, 
138 ;  in  mecUeval  French  law,  160, 
161,  171 ;  in  France  from  the 
1500  s  to  the  Revolution,  287. 

Theology,  bigoted,  in  the  1500  s  in 
Germany,  226 ;  emancipation 
from,  in' the  1700  s,  244;  modern 
tendencies,  464. 

"Theresiana",  the  Austrian,  249, 
311. 


560 


INDEX 


Thibaut,  433,  519. 

Thomasius,  Chr.,  243,  311,  411. 

"Threat  of  law, deterrence  through  ", 
theory  of,  429. 

Thiiringian  Code,  346. 

Tort  and  crime,  524 ;  Hegel's  dis- 
tinction, 525 ;  Hälschnor's  dis- 
tinction, 526 ;  Merkel's  distinc- 
tion, 528  ;    relation  of,  528. 

Torture,  117,  157,  180,  269,  n.  3. 

Town  Codes,  140. 

Tradition,  consideration  of,  in  pun- 
ishing, 518,  520. 

"Transactio",  234,  n.  3. 

Transgressions,  330 ;  according  to 
the  Prussian  Code  of  1851,  350 ; 
minor,  526. 

Treason,  in  medieval  German  law, 
101 ;  in  medieval  French  law,  161, 
163  ;  crimes  of  temporal,  281  ; 
high,  282.  See  Lese  Majeste, 
Perduellio. 

Trendelenburg,  470. 

Twelve  Tables,  law  of,  11,  13,  14, 
15,  n.  16,  22. 

Unchastity,  228,  244. 
Unification  of  law,  353,  374. 
Universities,  the,  246. 
Usury,  184,  288. 

Vagrancy,  175. 

Vengeance,  source  of  criminal  law, 
5,  479  ;  servant  of  higher  ideal,  6  ; 
blood,  6,  n.  6,  120  ;  early  suppres- 
sion of,  in  Roman  criminal  law, 
11-16;    prominence  of,  in  primi- 


tive Germanic  criminal  law,  57 ; 
limitations  of,  120,  122 ;  in  pro- 
\incial  Codes  of  Scandivania,  125  ; 
public  and  private,  in  medie\-al 
French  law,  150;  private,  prohib- 
ited in  Scandinavia,  291  ;  Grotius' 
theory  of,  399 ;  as  an  expression 
of  disapproljation,  509. 

"  Verfestung",  112. 

Voet,  Joh.,  307. 

Vogt,  J.  H.,  368. 

Voltaire,  311. 

Voorda,  Professor  B.,  307. 

Vouglans,  Aluyart  de,  318,  n.  12. 

Welcker,  447. 

Whipping,  form  of  punishment, 
190. 

Wieck,  Von,  455. 

Wieland,  E.  C,  419. 

Wier,  Johannes,  310. 

Witchcraft,  45,  183,  279  ;  trials,  226 ; 
gradual  suppression  of,  in  the 
1700  s,  243 ;  in  Scandinavia,  294, 
295,  296  ;  in  the  Xetheriands,  309. 

Wolff,  Christopher,  411. 

Workhouses,  237. 

"Wormser  Reformation",  the,  207. 

Wounds,  133,  167. 

Wrong,  Hegel's  discussion  of,  463 ; 
Köstlin's  discussion  of,  474 ;  de- 
fect of  Hegel's  theory  of,  498. 

Wiirtemberg  Criminal  Code,  345. 

ZachariX,  C.  S.,  451. 
Zurck,  E.  van,  307. 
Zypaeus,  F.,  307. 


561 


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